IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


150     "^ 

mm 


2.2 


iiil 


\25  1  1.4 

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Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  MSSO 

(716)872-4303 


4p> 


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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiquos 


Technical  and  Bibliographic  Notes/Notes  tschniques  et  bibliographiques 


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D 


D 


D 


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Coloured  covers/ 
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I      I    Covers  damaged/ 


Couverture  endommag^e 


Covers  restored  and/or  laminated/ 
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I      I    Cover  title  missing/ 


Le  titre  de  couverture  manque 


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Hi 
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Ce  document  est  film6  au  taux  de  reduction  indiquA  ci-dessous. 


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2BX 

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d'Impression  ou  d'iilustration  at  en  terminant  par 
la  dernlAre  pegs  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — ^-  (meaning  "CON- 
TINUED"), or  the  symbol  y  (meaning  "END"), 
whichever  applies. 


Un  des  symboles  suivants  apparaftra  sur  la 
dernlAre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbols  — ►  signlfle  "A  SUIVRE",  le 
symUole  ▼  signifie  "FIN". 


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Les  cartas,  planches,  tableaux,  etc.,  peuvent  Atre 
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Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  eii  un  seul  ciich6,  il  est  fiim6  A  partir 
da  I'angle  supArleur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nAcessaire.  Las  diagrammes  suivants 
illustrant  la  m6thode. 


1 

2 

3 

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2 

3 

4 

5 

6 

TfP 


mmmmmmmmmrfmmiffm-r^'''—'''^mi 


<M  ;,<>•-—-'■ 


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THE 


.:  *. 


CLAIM   AND    ANSWER 


!iH»h*) V"  :f~\ 


WITH    THE 


"*■  t , 


SUBSEQUENT    PROCEEDINGS 


IN  THE  CASE  OP 


ANDREW   ALLEN,    Esquire, 


;#^i'  t«' 


AGAINST 


'! 


7/6^  United  States. 


UNDER.  THE  SIXTH  ARTICLE  Ol  THE  TREATY  OF  AMITY,  COMMERCE, 
AND  NAVIGATION,  BETWEEN  HIS  BRITANNIC  MAJESTY  AND  THE 
UNITED  STATES  OF  AMERICA.  '       *  "^ 


-    :*  • 


>■  "   -ff    t     1  .' Jv 


■•■#■ 


->e<C>O4Q«GK0)O<- 


•I   na«       PHILADELPHIA: 


»RINTED    BY     JAMES    HUMPHR)  YS,.     OPPOSITE     THE    BANK    OF    TH» 


■*5!; 


UNITEO     STATES. 


;';  jyi 


1799. 


,  -^ 


T-' 


?  i   < 


-5*. 


^i... 


Meoooe<o>ooe<« 


i.,-:f.  <•  .. 


THE  CLAIM. 


.,  irjl-,'  ^  ' 


To  the  COMMISSIONERS  for  carrying  into  EffeEl  the  Sixth 
Article  of  the  Treaty  of  Amity  ^  Commerce ^  and  Navigation^  con- 
cluded between  His  Britannic  Majefty  and  the  United  States  of 
America,  on  the  nineteenth  Day  of  November,  in  the  Tear  of 
our  JLord  one  thoufandf even  hundred  and  ninety-four. 


ANDREW.  ALLEN,  of  London,  in  the  Kingdom  of  Grtat-Britain, 


.J  RESPECTFULI  V    SHEWSTH,  ' 

THAT  he  is,  and  from  Ks  BlrtK  ever  has  been,  a  fubjeft  of  the  Kin^of 
Great-Britain,  and  under  the  allegiance  of  the  faid  King : — ^That  on  the 
iixth  day  of  March,  in  the  year  of  our  Lord  one  thoufand  feven  hundred  and 
feventy  eight,  the  Legiflature  of  the  Commonwealth  of  Fenniylvania  pafled  a 
lawx  whereby  they  attainted  him  the  faid  Jndrrw  Men  of  high  treafon  againft 
the  faid  Commonwealth,  for  his  adherence  to  his  faid  Majefty,  and  confi^ated 
and  forfeited  to  the  ufe  of  the  faid  Commonwealth,  under  certain  terms,  all  the 
eftate  real  and  perfonal,  of  him  the  faid  Andrew  Allen,  within  ihe  faid  Com- 
monwealth. 

That 


[       4       ] 

Tint  at  the  time  of  the  faiJ  confifcation  and  foifeiturc,  divers  perfons  with- 
in the  fail!  Commonwealth  of  Pennfylvania,  were  jullly  indebted  to  him  the 
(aid  Jiidreiu,  in  large  Turns  of  money,  and  in  confequcnce  of  the  faid  aft  of 
.AlRmhiy,  paid  the  lame  to  perfons  adling  under  the  Executive  Authority  of 
I'cniifylvanu  and  the  (aid  auaindcr,  a  (chedule  of  whole  names,  and  of  the 
Turns  of  mont'y  by  them  fo  paid  rcfpcftively,  is  hereto  annexed;  which  faid 
ctbts,  if  they  had  not  been  fo  paid,  would  now  amount,  principal  and  intereft, 
to  the  fum  of  (ifteen  thouiand  and  eighty-three  pounds  thirteen  (hillings  and 
three  pence  three  farthings: — That  by  the  faid  law  and  other  afts  of  Affembljr 
cf  the  faid  Commonwealth,  all  perfons  fo  paying  fuch  fums  of  money,  were 
difchargcd  from  the  payment  thereof  to  him  the  faid  Andrenu  Allen,  and  confe- 
qucntly,  he  is  dil'abled  from  recovering  the  fame  in  the  ordinary  courfe  of  judi- 
cial proceedings ; — Your  Memorialiil  therefore  prays,  that  this  his  Claim  may 
be  received  for  the  faid  fum  of  fifteen  thoufand  and  eighty-three  pounds  thirteen 
iliiilings  and  three  p^nce  three  farthings,  Pennfylvania  currency,  and  fuch  a- 
•ward  may  be  made  thereon  as  equity  and  juftice  (hall  require. 

Ncvemter  28,   1798, 


Certificate  of  TREASURY  Payments. 


I  CERTIFY,  that  upon  fearching  the  record  of  the  proceedings  of  the  late 
Supreme  Executive  Council  of  the  Commonwealth  of  Pennfylvania,  it  apnears, 
that  the  following  named  perfons  obtained  from  the  faid  Council,  patents  in  the 
name  and  by  the  authority  of  the  Commonwealth  for  the  feveral  trafts  of  land 
annexed  to  their  names  refpedlively,  fituate  in  the  county  of  Northampton,  and 
held  in  right  of  Andrew  Allen,  Efquire,  who  was  by  an  adl  of  the  General  Af- 
fembly,  pa(rcd  the  fixth  day  of  March,  1778,  attainted  of  high  treafon  ;  which 
trafts  were  decreed  by  the  Supreme  Court  of  this  State,  in  purfuance  of  the  faid 
adl  of  A(rembly,  to  the  feveral  Claimants,  jpon  their  paying  into  the  public 
Treafijry  the  J'e'veral  balances  of  pur  chafe  monies  (nuith  intereji }  ivhich  wert  made 
payable  by  injialments,  under  articles  of  agreement  entered  into  by  them  with  the  faid 
Andrew  Alley,  prfvious  io  hit  attainder  cf  high  treafon,  for  the  purchafe  of  the 
faid  trails  of  land,  viz.  ,^  f  . 

,  ,    ■  '■  '    .  ■.,    ,  ■      .      'Nliints. 

\         '    ■  ■      •  ;  .:  •.■■;  ■.        -       .'  .  .   :,    ,;-.   ■;       .       :r.  ..;  ;■,.. 

.      '      r.'  ■       .    .■.;    ,.   ■•        .;:  ■•vi  :■■  -J: ; 


.^"•■■t.. 


[     s     3 


^""-    ^t;;?..*-' 

'  LanJ. 

Balance  of  purcha/e 

Date  o/  Patent. 

Perches 

Money, 

Samuel  Brown,                420 

66 

£ 

"473      « 

6 

\6th  Dec.    1784. 

John  Sterling,                  183 

no 

800     0 

0 

\ft             1785. 

Margaret  Wilfon  )          ,,3 
and  Children,    |         *'" 

897     3 

0 

James  Clyde,                  250 

694  15 

0 

S//. 

Samuel  Wilfon,                210 

»30 

1016     2 

3 

l-]lh  May,   1785. 

George  WolfFe,                101 

80 

348     0 

0 

20th  Sept. 

John  Clyde,                    100 

289  17 

6 

\ft March,  \-^%e. 

Jofeph  Horner,    •'            18 -8 
Hugh  Horner,                150 

62 

832   19 

0 

20th  oa. 

240     0 

0 

2t^h  June. 

JAMES  TRIMBLE, 

Deputy  Secretary. 

Secretary's  Office, 

Philadelphia,  Novimber  27,  i 

798. 

Copy  of  one  of  the  Decrees  of  the  Supreme  Court 

of  Ptnnfylvania. 


Samubl  Wilson, 

•vs. 

Andrew  Allen's  Estate. 


i 


Decree. 


BE  it  remembered,  thiit  on  the  13th  day  of  April  1779,  at  the  rity  of  Phi- 
ladelphia, Samuel  Wilftn  ef  the  county  of  Northampton  and  ftate  of  Pennfyl- 
vania,  preferred  a  Claim  to  the  honorable  Thomas  M'Kean,  William  Augujtui 
Atlee,  and  John  Evans,  efqnires,  Juftices  of  the  Supreme  Court  of  the  Com- 
monwealth of  Pennfylvania,  againil  the  Eftate  of  Andrew  Men,  e(c\M\rc,  one 
of  the  perfons  attainted  of  high  treafon  by  an  aA  of  Aflembly  of  faid  Common- 
wealth, in  the  words  following,  to  wit:  To  the  honorable  Thomas  M'Kean, 
efquire.  Chief  Juftice  of  the  Commonwealth  of  Pennfylvania,  the  Claim  oi  Sa- 
muel Wilfon,  of  the  county  of  Northampton,  and  State  of  Pennfylvania,  humbly 
reprefents  to  your  Honor,  That  whereas,  by  articles  of  agreement  duly 
executed  under  hand  and  feal,  between  Andreiu  Allen,  efquire,  Tate  of  the  ftate 
«fbfcfaid,  of  the  one  part,  and  Samuel  Wilfon,  of  the  county  aforefaid,  of  the 

other 


r  6  I 

other  part,  !c  is  covenanted  and  agreed  by  and  between  the  faid  parties  in 
manner  and  form  following,  viz.  "  Articles  of  agreement  made  at  Philudel- 
*'  phia  the  24th  day  of  March,  Anno  Domini  17751  between  Antlmu  AIUh  of 
"  cue  city  of  J'hiladelphia  of  the  one  part,  and  Samuel  Wil/on  of  Chefter  coun- 
"  ty  of  the  other  part.  The  faid  Andrevj  Allen  hath  agreed  and  covenanted* 
"  to  and  with  the  faid  Samuel  H'llfon,  to  convey  to  him  a  certain  traft  of  land 
"  fituate  on  the  Munackefy  creek  in  Allen  townfhip.  in  the  county  of  North- 
"  ampton,  furveyed  lor  and  fuppofed  to  contain  eighteen  hundred  and  fifty-three 
*'  acres  of  land,  at  the  rate  of  four  pounds  per  acre,  the  ufual  allowance  of  fix 
"  per  cent,  not  to  be  reckoned,  one  fourth  part  of  the  purchafe  money  to  be 
"  paid  on  the  firll  day  of  May  in  the  year  of  our  Lord  1776,  free  of  intereft 
"  till  that  time,  and  upon  the  receipt  of  this  money,  the  faid  Andrew  doth  co> 
"  venant  to  make  the  faid  Samuel  a  good  and  legal  title  to  the  fame:  and  if 
"  the  laid  Samuel  (hould  fell  to  any  other  parts  of  the  faid  land,  the  faid  An- 
"  drew  will  make  a  title  to  each  of  the  purchafers  in  their  own  names,  the  faid 
"  Samuel  or  the  faid  purchafer,  mortgaging  the  faid  land,  or  their  fevera)  parts, 
"  to  the  faid  Andrevj,  for  the  remaining  three-fourths  of  the  original  purchafe 
"  money,  with  interert  from  the  faid  day  of  May,  agreeable  to  their  feveral 
"  (hares  ;  and  the  faid  Samuel  doK\\  covenant  to  pay  to  the  faid  Andrew  for  the 
"  laid  land  in  the  manner  above-mentioned,  and  at  the  rate  aforefaid  ;  and  for 
"  the  true  performance  of  the  premifes,  the  faid  paities  bind  themfelves,  their 
"  heirs,  executors,  and  adminiitrators,  in  the  fum  of  four  hundred  pounds  to 
'  each  other,  their  executors  and  adminiftrators  firmly."  And  whereas 
the  faid  Andreix)  Allen  afterwards,  to  wit,  the  fixth  day  of  March,  in  the  year  of 
our  Lord  one  thoufand  feven  hundred  and  feventy-eight,  was  duly  attainted  of 
high  trcafon  by  an  aft  of  the  Aflembly  of  the  Commonwealth  aforefaid,  and  all 
the  ellate  real  and  perfonal  of  the  faid  Andrew  Allen,  of  what  nature  or  kind 
foever  which  the  faid  Andrew  Allen  was  feized  of  or  pofTefled  on  the  fourth  day 
of  July,  1776,  or  any  other  perfon  to  his  ufe  or  in  truft  for  him,  are  by  the 
faid  law  declared  to  be  forfeited  to  the  ufe  of  the  State  aforefaid  :  And  /here- 
as  by  the  faid  aft  of  Affembly  it  is  provided,  that  any  perfon  having  any  right, 
title,  intereft,  ufe,  truft,  charge,  or  incumbrance  whatfoever,  in  law  or  equity, . 
Upon  any  meffuages,  lands,  tenements,  &c.  thereby  veiled  in  the  State,  by  any 
fettlemcnt,  conveyance  or  incumbrance,  which  was  binding  on  the  forfeiting 
perfons,  and  might  have  affefted  their  eftates  before  the  times  whereon  the  fame 
Hull  be  veiled  in  the  State,  ihall  enter  his  faid  claim  before  your  Honors,  and 
the  Supreme  Court  of  the  Commonwealth  aforefaid  are  empowered  to  hear  and 
determine  faid  cafe,  and  to  award  final  decrees  in  all  fuch  cafes :  And  whereas 
it  appears  from  the  aforefaid  recited  articles  of  agreement,  that  if  the  faid 
Samuel  W^il/on  (hould  fell  any  part  of  the  faid  eighteen  hundred  and  fifty-three 
acres  to  other  perfons,  the  faid  Andrew  Allen  covenants  to  make  a  good  title 
to  each  of  faid  purchafers  in  their  refpeftive  names :  And  whereas  the  faid 
claimant  in  purfuance  of  faid  claufe,  did  fell  to  fundry  perfons  part  of  the  afore- 
faid traft  of  land,  who  have  Ance  the  faid  fales  entered  into  contraAs  with  the 
faid  Andrew  Allen  for  the  payment  of  the  purchafe  money  thereof,  and  hath 
alfo  referved  to  his  own  ufe  about  fix  hundred  acres  of  the  aforefaid  traft,  where- 
on  the  faid  Samuel  fVil/on  hath  ereftud  a  good  dwelling  houfe  and  barn,  and 
hath  made  divers  other  improvements  ;  Wherefore  the  faid  Samuel  Wilfon  prays 
your  Honors  will  be  p.lcafed  to  take  the  premifes  into  confideratioD,  ana  by  a 

Decree 


[      7      ] 

Decrre  oF  this  Court  confirm  his  title  to  the  aforefaid  fix  hundred  acrei  of  land 
ib  as  aforefaid  occupied  and  enjoyed,  upon  hisi  paying  to  the  ufe  of  the  State  the 

Eurchafe  money  due  therefor,  which  he  is  ready  and  willint;  to  do  if  your 
lonor  {hall  fo  determine,  and   the  faid  Samutl  H'il/on  offer:)  himfeU  to  prove  the 
premifes  in  fuch  manner  as  to  your  Honors  fhail  feem  moil  proper. 


In  the  prefence  of 

Htnry  Deunitf 
yaeoi  Rujh, 


Saml.  Wilso  n. 
Philad.  Jfril^ih,  1799. 


AND  the  faid  JuAices  taktn?  the  fame  into  confideration,  as  alfo  the  teAimo  - 
ny  both  verbal  and  written  exhibited  to  them  in  fupport  thereof;  do  adjudge  and 
decree  to  the  faid  Samuel  JVil/on,  his  heirs  and  alfigns,  two  hundred  and  ten  a- 
cres  and  one  hundred  and  thirty  perches  of  land  and  allowance,  being  only  part 
of  the  faid  traft  of  fix  hundred  acres  of  land  claimed  as  aforefaid  by  the  faid 
Samuel  Wil/of,  which  fame  land  fo  decreed  to  the  faid  Samuel  Wil/on,  is  butted 
and  bounded  in  manner  following,  that  is  to  fay,  bounded  by  land  of  the  Widow 
Wilfon  on  the  north,  of  Samuel  Brown  on  the  weft,  of  George  Wolf  junior  on 
the  fouth,  and  Monackefy  creek  on  the  eaft,  beginning  at  a  ftone  in  the  centre 
of  Monackefy  creek  aforeTaid  the  fouth  eaft  corner  of  the  Widow  Wilfon's  Iand> 
thence  weil  two  hundred  and  twenty-nine  perches  to  a  poll  in  the  line  of  Samuel 
Browns  land,  thence  fouth  one  degree  weft  along  the  faid  Samuel  Brown's  land 
one  hundred  and  eighty  three  perches  to  a  poll,  thence  call  one  hundred  and 
fixty  three  perches  to  a  in  the  centre  of  Monackefy  creek  aforefaid, 

thence  up  the  centre  of  the  fame  creek  according  to  the  feveral  courfes  thereof 
to  the  place  of  beginning ;  containing  two  hundred  and  ten  acres  and  one  hun- 
dred and  thirty  perches  of  land,  befides  the  ufual  allowance  of  fix  acres  per  cent, 
for  roads  and  highways.  Sec,  He  the  faid  Samuel  Wil/en  his  heirs  or  ailigiw, 
paying  and  fully  fatisfying  to  his  Excellency  the  Prefident  and  the  Supreme  Ex- 
ecutive Council  of  the  faid  Commonwealth,  or  to  fuch  other  perfon  orperfons 
as  they  fltall  depute  and  authorife,  or  have  deputed  and  authorifed  to  receive 
the  fame,  at  the  rate  of  four  pounds  for  every  acre  of  the  faid  two  hundred  and 
ten  acres  and  one  hundred  and  thirty  perches  of  land,  decreed  to  the  faid  Samuel 
Wil/on  as  aforefaid,  with  lawfiil  intereft  for  the  fame,  from  the  firft  day  of  May 
one  thoufand  feven  hundred  and  ieventy-fix. 

•    '      >A  trm  cofy  of  the  rtcard, 

EDWARD  BURD,  ?r»tb. 


Certified  copies  of  Decrees  in  favor  of  all  the  other  purchafers,  and  fiindry 
other  documents,  are  filed  in  proof  of  the  debts  for  which  compenfation  is 
claimed,  but  they  are  not  neceflary  to  the  right  under^nding  of  the  merits 
of  the  Claim, 


n 


[       8       3 


•n  the  COMMISSIONERS  for  carrying  into  EffeSl  the  Sixth 
Article  of  the  'Treaty  of  Amity,  Commerce,  and  Navigation^ 
concluded  between  his  Britannic  Majejly  and  the  United  States 
of  America,  on  the  nineteenth  Day  of  November,  in  the  Tear  of 
our  Lord  one  thoufand  fcven  hundred  and  ninety-four. 


THE    ANSWER 


On  the  part  of  the  United  States  to  the  Memorial  and  Claim 
of  Andrew  Allen,  Efquire. 


IN  the  Claim  of  Mr.  Jl/en  the  following  circumftances  appear  ncceffary  to  be 
flateii  by  the  Agent  for  the  United  States,  in  order  that  the  Board  may 
clearly  comprehend  the  defence  fet  up  on  their  part. 

Mr.  j^llen  in  the  year  1772,  by  articles  of  agreement  entered  into  between 
him  and  Hugh  Horner  and  John  Clyde,  agreed  to  fell  to  the  faid  Horner  and  Clydt 
two  fcveral  trafts  of  land  fituated  in  the  county  of  Northampton,  in  the  then  pro- 
vince now  State  of  Pennfylvania,  on  their  paying  him  the  purchafe  money 
agreed  on  for  the  fame  at  two  periods  mentioned  in  the  faid  agreements.  It 
was  further  agreed,  tiiat  on  the  payment  of  the  firll  fum  of  money  mentioned 
in  the  agreement,  that  the  claimant  would  convey  to  the  faid  Horner  and  Clyde, 
the  legal  eftate  in  the  faid  land,  they  giving  him  a  mortgage  on  the  land 
for  the  remainder  of  tlie  purchafe  money.  Payments  appear  to  have  been  after- 
wards made  by  the  faid  Horvtr  and  Clyde  to  the  claimant,  but  not  to  the  amount 
cf  the  purchafe  money. 

It  appears  from  the  documents  filed  with  the  memorial,  that  the  claimant  made 
fimilar  agreements  with  fundry  other  p"rrons  for  lands  in  the  county  of  North- 
ampton, whofe  demands  are  alfo  the  fubjeft  of  the  prcfent  claim. 

By  an  aft  pafTcd  by  the  Legiflature  of  Pennfylvanij,  6th  March,  1778,  the 
claimant  was  by  name  convidted  and  attainted  of  liigh  treafon  and' all  his  eftate 
renl  and  peifonal  forfeited  to  the  State.  It  is  provided  by  the  fame  aft,  that  all 
perfjiii  claiming  any  intcrcH  in  the  eftate;  fo  forfeited.,  mnv  make  their  claims 

before 


f     9      1 

fcefore  the  Jufticei  of  the  Supreme  Court  in  writing,  wRo  are  to  proceed  in  x 
fummary  way  to  examine  into  the  claims  of  fuch  perfons,  to  fee  whether  they 
have  any  right,  title,  intereft,  or  charge,  in  law  or  in  equity,  on  any  lands 
vcfted  in  the  State  by  that  a£l  binding  on  the  perfons  whofe  edates  are  forfeited 
by  the  a^,  and  to  make  final  decifions  in  fuch  cafes  accordingly. 

In  confeqnenceof  thisprovilTon  in  the  law,  the  feveral  purchafers  of  land  from 
the  claimant  were  decreed  by  the  Supreme  Court  the  feveral  ua&s  of  land  pur- 
chafeH  from  the  claimant,  on  their  paying  to  the  ilate  the  purchafe  money  for 
the  fame  which  remained  due  with  intcrelt.  For  this  money  fo  paid,  the  pre- 
Icnt  claim  is  preferred  againft  the  United  States. 

In  the  year  1792  a  pardon  was  granted  by  the  Governor  of  Pennfylvania,  and 
the  fame  accepted  by  the  claimant.     A  copy  of  which  accompanies  this  anlwer. 

The  defence  of  the  United  States  to  this  claim  reds  on  the  following  grounds. 

ill.  That  the  claimant  is  not  of  that  defcription  of  perfons  capable  of  claim- 
ing compenfation  in  this  cafe  from  the  United  States  by  virtue  of  the  Treaty 
of  Amity,  he  being  an  American  attainted  of  high  treafon,  which  attainder 
remained  in  full  force  at  the  Treaty  of  Peace,  and  fo  continued  until  he  receiv- 
ed a  pardon  in  the  year  1792. 

2d.  If  the  claimant  was  comprehended  within  the  Treaty  of  Peace,  then  the 
monies  due  to  the  claimant  being  an  equitable  charge  on  the  lands  forfeited  to 
the  State,  are  within  the  provifion  of  the  laft  claule  of  the  yh  article  of  that 
Treaty,  and  thofe  lands  have  always  remained  liable  to  fatisfy  the  fame,  and 
are  now  equal  to  the  payment  of  all  the  monies  which  are  in  juilice  due  to  the 
claimant,  which  may  be  recovered  in  the  ordinary  courfe  of  juftice,  on  the 
Equity  fide  of  the  Circuit  Court  of  the  United  States,  holden  in  the  Diftrift  of 
Pennfylvania. 

3d.  No  intered  during  the  war  under  the  particular  circumftances  of  this  cafe 
is  judly  due  to  the  claimant. 

On  the  firft  head  of  defence  no  obfervation  will  be  made.  On  the  fecond 
head  of  defence,  if  the  firft  is  over-ruled,  the  Agent  prays  leave  to  obferve> 

At  the  time  of  the  fale  of  thefe  lands  it  was  the  intention  of  the  parties  to 
the  fale,  that  the  lands  fhould  remain  the  ultimate  fecurity  for  the  payment  of 
the  purchafe  money.  The  feveral  agreements  (c  far  as  they  are  iecited  in  the 
record,  plainly  difcover  this  to  be  the  cafe  ;  for  the  feveral  purchafers  on  the 
payment  of  the  firfl  part  of  the  purchafe  money,  are  to  receive  good  and  legal 
titles  to  the  lands,  which  they  are  immediately  to  mortgage  for  fecuring  the 
balance :  The  legal  eflate  never  having  been  conveyed,  the  mortgages  could 
not  be  given.  The  intention  and  meaning  of  parties  to  contraAs  or  agreements 
is  the  equity  which  muft  rule  the  cafe,  and  will  uniformly  govern  tribunals 
authorifea  to  do  equity  in  their  decifions  upon  it.  The  intention  of  the  Claim- 
ant WM  to  part  with  the  land,  the  intention  of  the  purchafers  was  to  invefl  in 

B  themfelves 


tij.- .  tMj^iu^^S 


[      10      J 

Uicm'tKcs  the  fee  fimple,  and  an  immediate  conveyance  of  the  legal  ellate 
would  have  been  made,  had  the  purchafers  been  able  to  have  given  a  fecurity> 
more  fatisfadtury  than  the  land.  The  legal  eltate  was  then,  retained  in  ^'.e 
Claimant  merely  for  the  purpofe  of  fecurity,  and  was  to  have  been  parted  with 
on  the  pnyments  being  made,  and  a  mortgage  taken  in  return.  Such  app  ar- 
ing  to  be  the  juftice  ana  truth  of  this  cafe,  the  Claimant,  if  his  right  is  wiihin 
ihu  Treaty  of  Peace,  has  unqucdionably  an  equitable  Claim  on  thefe  lands  for 
the  purchafe  money,  they  were  looked  to  at  the  time  of  fale  as  the  ultimate  fe- 
curity for  it,  and  the  Claimant  would  have  been  obliged  on  the  compliance  with 
the  agreements  by  the  purchafers  to  have  made  them  titles  conformably  to  their 
agreements.  Whatever  by  the  rules  of  equity  is  agreed  to  be  done  mull  be  con- 
fidered  as  done.  It  was  agreed  that  the  land  Ihould  be  the  fecurity  for  the  pur- 
chafe money,  and  this  principle  of  equal  juftice  cannot  be/atisfied  unlefs  th^fe 
lands  are  now  fo  confidered.  By  \}rv. fifth  Article  of  the  Treaty  of  Peace  it  is 
provided,  "  that  all  perfons  who  have  any  intereft  in  coniifcated  lands,  either 
"  by  debts,  marriage  fettlements,  or  otherivi/e,  (hall  meet  with  no  lawful  iui- 
"  pediment  in  the  profecution  of  iheir  juft  rights." 

This  Article  exprefsly  revives  the  remedy  for  thefe  debts,  if  the  confifcatior; 
and  attainder  were  annulled  by  the  Treaty  of  Peace  ;  and  the  Claimant  may 
purfue  it,  by  reforting  to  the  equity  fide  of  the  Fecierai  Court,  which  has  jurif- 
oiftion  over  fuch  demands.  They  are  the  proper  fubjefls  for  their  cognizance, 
and  in  that  court  juftice  will  be  truly  and  honourably  adminiftered,  and  the  rights 
of  ;he  Claimant,  whatever  they  be,  under  the  Treaty  of  Peace  faithfully  re- 
garded. 

Having  fhewn  that  there  is  now  a  remedy  for  thefe  demands  in  the  ordinary, 
courfe  of  juftice,  and  that  there  is  an  ample  fund  as  it  is  believed  for  the  payment 
of  them,  it  feems  unneceflary  to  obferve  on  the  charaAer  of  the  Claimant  and  his 
ability,  notwithftanding  his  former  attainder,  to  maintain  fuits. 


AU  which  is  moft  refpeflfuUy  fubmitted. 


JOHN  READ,  jun. 

Agint  for  Unittd  Slateu 


I   "    1 


Commissioners'  Office. 
Philadelphia^  March  12,  1799. 

Presekt. 

Mr.  MACDONALL/, 
Mr.  RICBI, 
Mr.  FITZSIMONS, 
Mr.  SITGREAVES, 
Mr.  GUILLEMARD. 

Ill  the  Cafe  of  Andrew  Allen» 


On  motion  of  Mr.  SiTG  REAVES, 

ORDERED,  That  the  General  Agent  for  claimanti  .*<;t  forth  in  his  reply  in 
this  cafe,  fuch  argument  as  he  may  think  neceflary  for  obviating  the  following 
points,  in  addition  to  thofe  fuggefted  by  the  anfwer  on  the  part  of  the  United 
States,  to  wit. 

That  the  title  to  the  lands  having  been  in  the  claimant  at  the  time  of  his  at- 
tainder, the  confifcation  and  forfeiture  attached  upon  the  land^,  and  not  upon  the 
confideration  money  covenanted  to  be  paid  for  the  fame,  by  the  perfons  who  had 
entered  into  articles  with  the  claimant  for  the  purchafe  thereof :— thar  confifcati- 
ons  ^f  lands  during  the  war  were  not  impaired  or  affefled  by  any  ftipulation  of 
the  Treaty  of  1783,  but  remained  «s  effedhial  after  the  Peace  as  before  : — That 
by  the  5th  article  of  that  Treaty  it  was  agreed  to  recommend  to  the  feveral 
dates,  that  fuch  confifcated  lands  (hould  be  reflored  to  the  former  proprietors, 
'"  they  refunding  to  any  perfons  who  may  be  now  in  pofleflion,  the  bonafidt 
"  price  (where  any  has  Been  given)  which  fuch  perfons  may  have  paid  on  pur- 
"  chafing  any  of  the  faid  lands  ftnce  the  confifcations  :"-»That  .iny  demand  by 
the  claimant  againll  the  faid  purchafers,  for  the  confideration  money  unpaid  on 
t'he  articles  of  agreement  aforefaid,  would  be  incompatible  with  the  fpirit  of  the 
condition  or  limitation  juft  recited,  inafmuch  as  the  fums  thusunpaid  to  the  claim- 
ant, and  for  which  he  prays  an  award  to  be  made  In  his  favour,  were  precifely  the 
films  paid  by  the  faid  purchafers  for  the  conveyances  they  received  f.  Dm  the  (late 
nfttr  the  confifcation,  and  which  fums  muft  have  been  refunded  to  them  by  the 

claimant 


12 


craimant  to  the  fame  lanas,  "/ ";";-Vjj  agreements  'aiiea  «n  »- ,^a^    ^  ^ 

parchafers  -"^^;^^;£j;'»     do  "0^^°"^^  m  £g"f  the  4*^  article 

of  the  Treaty  of  Peace. 

Extraa  from  the  Minutes. 

G.  EVANS,  Secretary.. 


.n  A,  coMmssiomKsf«  carnal XI  fiyX^\ 

America. 


THE    REPLY 


0/ Andrew  Alkn. ,.  f  ^|^»-;;f  X'  °IftXfi7'^'' 


[       '3       J 

bis  ejiate  conjifcated,  will  juflify  the  afiertion,  ih^t  at  no  f  tried,  from  the  fcace  ?a 
the  pre/ent  hour,  could  fuch  plaintiff  ever  fuftain  a  fuit,  cither  at  law,  or  in  equi- 
ty, for  the  recoi'ery  of  any  fuch  confifcattd  debt,  where  the  fame  was  contiadetl 
within  the  State  in  which  the  attainder  and  confifcLcion  were  had  :  And  it. is 
with  equal  confidence  averred, /jfcfl/  not  one  fugle  Diilum  nf  any  fudge  in  the  United 
States  can  be  produced  in  fupport  of  the  rij^hts  of  fuch  plaintiffs  to  nroi^?ry//rZ'rt«- 
ffcaied  debts.     The  different  decifions  heretofore  referred  to  in  the  claim  of  Dr. 
Inglis'w'iW  be  remarked  upon  in  the  courfe  of  this  reply,  rather  more  particularly 
than  has  hitherto  been  done,  and  fomeothercafes  cited  to  the  fame  point ;  and  it  will 
be  ihewn,  that  thefe  decifions  upon  legiflative  attainders  have  been  equally  againil 
the  plaintiffs,  who  adhered  to  their  native  allegiance  from  the  commencement  of 
the  difturbances  between  the  two  countries,  and  openly  and  avowedly  joined  the 
Britiih  ftandard  long  before  the  declaration  of  independence,  and  while  Congrefs, 
and  every  Legiflature  and  inhabitant  in  tne  country,  acknowledged  their  allegi- 
ance to  the  Britilh  crown,  as  againft  thofe  who  did  not  withdraw  until  after  that 
declaration.     Whatever  controul  the  Courts  of  this  country  might  have,  by  writs 
of  error  or  ctherwife,  over  attainders  by  proclamations   if  Executi-ves    exceeding 
the  flriit  letter  of  a  delegated  authority,  or  attainders  by  judicial  procefi  having 
error  apparent  on  the  record,  yet  even  thefe  could  not  be  drawn  in  queltion  colla- 
terally in  an  aflion  of  debt,  and  in  no  (hape  whatever  can  the  omnipotence  of  the 
Legiflature  attainting  individuals   byname,  be  queftioned  ;  the  aft  itfelf  is  conclu- 
five  in  the  courts,  and  not  to  be  contradlfted  ;  the  parry  attainted  will  not  be  per- 
mitted to  ftiew  that  he  was  not  a  fubjeSi  of  the  State  ;  the  law  has  operated  upon 
him  as  a  traitor,  and  the  confifcation  is  the  punifhment  of  what  one  government 
calls  a  crime,  and  the  other  government  looked  upo:,  as  a  facred  and  indifpenfible 

While  it  will  be  thus  contended  and  clearly  ihewn,  that  Mr.  Jllen  is  without 
any  remedy  either  at  law  or  in  equity  to  recover  the  debts  due  to  him,  in  the  Courts 
of  the  debtor's  country,  and  that  he  is  prevented  from  a  recovery  of  the  fame  by 
impediments  created  by  laiu  and  not  by  the  creditor,  it  will  alfobe  infilled  upon 
and  (hewn,  that  from  his  birth  he  has  been  a  real  Britijh  fubjeil ,  that  he  was  fuch 
at  the  Treaty  of  Peace,  that  never  before  or  fmcehashe  transferred  his  allegiance 
to  any  other  power  under  heaven,  that  by  the  law  of  nature  and  nations  he  had  a 
right  to  take  the  part  he  did,  and  that  by  that  aft  and  at  that  time  he  was  guilty 
ofno  offence  againft  the  ftate  of  Pennfylvania. 

As  the  General  Agent  for  Claimants  expefts  to  eftablilh  beyond  a  doubt, 
both  by  the  law  of  nature  and  nations,  by  the  conllitution  and  laws  o\  Great 
Britain,  by  the  laws  of  Pennfylvania,  and  by  the  decifion  of  the  Board  in  a  fimi- 
lar  cafe,  that  Mr.  Allen  was  at  the  Peace  a  Britijh  fubjeil  and  compiehended  in 
i)\cfourth  article  of  the  Treaty  of  Peace,  it  will  here  be  premifed,  that  he  is,  with 
every  other  individual  in  a  fimilar  fituation,  mod  clearly  and  unequivocally  wilh- 
in  the  ftipulation  of  the  Jxth  article  of  the  Treaty  of  Amity. 

At  the  time  of  negociating  the  latter  Treaty  it  was'wcll  known  to  Mr.  fay, 
that  Britilh  fubjefts  who  had  refided  in  America  previous  to  and  at  the  commence- 
ment of  the  revolution,  and  had  been  attainted  for  adhering  to  the  Britilh  go- 
vernment, could  not  recover  their  confifcated  debts — ^He  had  himfelf  decided  the 
caufe  of  Murray  v.  Martan.  It 


^.^gl^SSKR;- 


-■yr^.>» 


t     H    I 

Tt  was  well  known  to  Lord  Grenvillc,  that  no  compenfation  had  been  given  f« 
'he  Loyalifts  for  their  debts,  and  that  the  ftipulation  in  the  fourth  article  of  the 
'i'reaty  ot"  Peace  mjai  the  reafon  luhy  ne  fuch  compenfation  luas  made  ;  and  the 
(iecifions  of  American  Judicatories  againft  the  recovery  of  thofe  debts  had  been 
the  fubjed  of  repeated  complaints  to  the  Britith  miniflry. 

It  may  with  con.fiden..e  be  alTerted  that  nearly  all  the  debts  due  from  American 
<:ltizcns  to  Britith  fubjedU  at  the  Peace  were  comprehended  in  two  clafles : — 

Firfl,  To  merchants  refident  in  Great  Britain,  for  goods  fent  out  to  American 
merchants,  or  contracted  at  the  ftores  of  fuch  Britiih  merchants  kept  by  their  fac- 
tors in  the  country. 

Second,  Debts  contrafted  by  one  Britifli  fubjeft  to  another  Britifli  fubjeft,  both 
refident  at  the  time  of  the  contract  in  the  Britiih  American  dominions,  "  under 
thefaniflion  of  laws  common  to  and  binding  upon  both,"  and  which  (lill  remained 
honaf'le  due,  owing  and  unpaid,  although  the  creditor  and  debtor  had  during  a 
revolutionary  war  taken  different  fides,  as  inclination,  convenience,  or  confcience, 
didated,  and  althojgh  the  government  of  the  debtor's  country  had  "  taken  hold 
of  the  debts."    While  the  Crown  of  Great  Britain  by  a  folemn  aft,   deemed  effen- 
tiat  by  Cingref,   acknowledged  the  independence  of  the  United  States,  and  re- 
liiiquifhed  all  claims  to  the  government,  propriety,  and  territorial  rights  of  the 
fame,  there  was  no  relinquilhment  of  the  allegiance  of  fuch  of  the  inhabitants  of 
the  colonies,  as  had  adhered  to  the  fide  of  Great  Brituin,  nor  was  it  in  the  power 
of  that  crown  to  abandon  them,  or  to  f'acrifice  their  perfonal  rights  which  were 
«'  incorporeal,"  of  which  "  manual  occupation  could  not  be  had  ;" — which  were 
"  concomitant  with  the  perfon  of  the  creditor,  and  which  could  not  be  extinguifh- 
*'  ed  by  the  Legiflature  of  the  debtor's  country."     The  rights  of  thofe  fubjefts 
were  as  facred  and  as  unalienable  by  the  crown  without  their  confent,  as  thckr 
allegiance  was  permanent  and  unalienabl  e  without  the  aiTent  of  the  crown. 
There  is  no  rifk  in  afferting,  and  no  difRculty  in  proving,  that  every  child  of  Bri- 
tifli fubjefts  (whether  the  parents  were  natives  of  Great  Britain  or  of  the  Britifli 
American  dominions,)  born  in  the  United  States  between  the  Declaration  of  In- 
dependence and  the  Treaty  of  Peace,  can  hold  eftates  either  of  inheritance  or  pur- 
chafe  in  any  part  of  the  Britifli  dominions,  notwithftanding  thofe  parents  uniform- 
ly adhered  to  the  American  fide. — That  Treaty  is  the  only  point  of  time  from 
which,  agreeably  to  the  Britifli  conftitution  and  laws,  the  United  States  ceafed  to 
be  part  of  the  Britifh  empire.     The  Loyalifts  therefore  were  as  much  Britifli  fub- 
jefts as  the  merchant  who  had  never  been  beyond  the  found  of  Bow  Bell,  and  the 
recovery  of  the  debts  due  to  them  by  American  citizens  was  fecured  by  the  fourth 
article  of  the  Treaty  of  Peace. 

But  while  the  eftates,  rights,  and  properties,  of  this  clafs  of  Britifh  fubjefts, 
which  had  been  confifcated,  entered  upon,  "fold,  re-fold,  and pajed  through  fuch 
"  a  'Variety  of  hands,  as  to  render  refloration  impraSlicable"  were  left  to  recommen- 
dation by  the  prior  part  of  the  fifth  article,  there  were  certain  debts  in  tjuhich  the 
Loyalijh  were  more  peculiarly  interefted,  and  which  were  not  provided  for  in  the 
fourth  article,  as  the  creditor  and  debtor  might  not  always  be  on  different  fides  ; 
iheie  were  particularly  the  objeft  of  the  ftipuTation  in  the  latter  part  of  the  fifth 

article- 


[ 


] 


article.     It  is  a  well  known  principle  in  the  law  of  England  and  of  the  United 
States,  that  the  note,  bill,  bond,  or  other  contrafl  originating  a  debt,  is  the  pro- 
per evidence  of  the  debt,  a  mortgage  or  any  ftriftly  legal  title  to  real  or  other  ef- 
tate  pledged,  and  accompanying  the  fpecialty  or  other  contrail,  is  only  confidered 
as  a  collateral  fecurity  ;  the  creditor  has  his  double  remedy  ;  he  may  purfue  which 
he  pleafcs ;  one  remedy  however  is  perfonal  and  tranfiiory  with  the  pcrfon,   the 
other  local,  with  the  mortgaged  premifes. — Many  of  the  Loyalifts  attainted  by 
the  fame  law  for  their  adherence  to  the  Britifli  government  had  been  fi  lends, 
neighbours,  and  had  had  many  pecuniary  tranfaflions  with  each  other  in  America, 
as  well  as  with  their  fellow  fubjet^s  in  Great  Britain,  and  with  others  who  remain- 
ed  attached  to  the  American  caufc  and  became  citizens  of  the  United  States. 
Their  realeftates  which  had  been  confifcated  were  in  many  inftanccs  pledged  for 
the  payment  of  thefe  debts.     In  Georgia,  for  inftance,  the  Legiflature  fuftered  no 
debts  to  be  paid  out  of  the  fal'es  of  confifcated  eflates,  except  fuch  as  were  due  to 
citizens  well  a{Fe6led  to  the  caufe  of  American  Independence.     In  other  States, 
onfifcated  lands  were  fold  during  the  war  upon  credit,  and  at  the  times  the  in- 
Halments  became  payable  the  money  had  funk  to  very  little,  and  yet  the   States 
received  the  nominal  fums  in  paper,  as  they  could  not  avow  the  depreciation 
without  ftamping  their  tender  laws,  which  they  were  obliged  to  keep  in  force, 
with  the  character  ot  iniquitous,  or  without  making  one  law  for  contracts  with 
the  State  aad  its  citizens,  and  leaving  in  force  a  different  law  to  regulate  con- 
trails between  individuals. — With  refpe£l  to  the  demands  againfl  theie  confifcat- 
ed eflates,  the  creditors  were  called  upon  to  prefent  them  within  limited  periods ; 
and  when  the  amounts  due  to  citizens  in  the  country  wereafcertained,  the  depre- 
ciated paper  of  the  country  at  its  nominal  amount  was  the  medium  of  payment  — 
This  in  many  infiances  was  not  worth  receiving — and  the  uncancelled  evidence 
of  the  unfatisfied  debt  due  by  the-  loyalifi remained  with  the  creditor,  while  the 
proper  fund  le  difcharge  it  had  been  feized  by  the  State.     The  flipulation  in  the^ 
clofe  of  the  /jftb  article  was  necefTary,  in  order  to  compel  the  very  creditors 
of  thefe  loyalifts  to  refort  to  the  proper  fund  for  their  debts,  inflead  of  following 
the  perfon  of  an  almoft  ruined  debtor,  who  had  fcarcely  any  thing  but  the  bounty 
of  his  government  tofubfifl  upon  ;  and  without  this  flipulation^  not  even  equity 
could  interfere  to  prevent  the  creditor  from  eleAing  his  tranfitory  adlion,  inHead 
of  procefs  againfl  the  property  pledged. — Again,  if  Mr.  ^llen  had  mortgaged  liis 
lands  in  Northampton  to  Mr.  Galuway,  inflead  of  felling  them  to  fettlers  who 
remained  citizens  of  America,  the  lands  would  have  been  forfeited  and  fold  as  the 
property  of  Mr.  Jlleti,  and  yet  the  legal  title  was  not  in  him,  the  equity  of  re- 
demption alone  would  have  been  his ; — the  IlriAly  legal  title  would  have  been  in 
Mr.  Galloway  ;— but  by  the  law  ofPennfihania  the  lands  and  debts  of  each  wers 
confifcated,  and  each  was  dead  in  the  eye  of  that  law  as  to  all  civil  rights ; — by 
the  law  of  EngUnd  "  they  were  both  BrittJhfuhjeSs,  hound  by  all  their  legal  contrails, 
"  and  armt<^  with  all  the  legal  rights  which  any  other  fubjeS  had ;" — but  the  lien 
on  the  particular  property  which  had  been  fpecifically  pledged  for  the  payment 
of  fuch  a  debt,  was  not  fecured  by  the  fourth  article  of  the  Treaty  of  Peace, 
which  related  to  creditors  on  one  fide  and  debtors  on  the  other ;  the  de/criptio  per- 
fenarum  xhetefoTC  in  the/ourth  article  was  dropt,  and  the  more  general  expreflioa 
*'  allperfins  having  any  intereji.  Sec,"  Wis  adopted,  re    '  ^rinjO;  it  immaterial,  whe- 
ther the  creditor  and  debtor  were  on  the  fame  fide  or  on  dimrent  fides. 

Althougli . 


'^Vov  »' ''■«»***^ 


.'3^'-"""  "■ 


•►,"t-«r-.^j|if.N„^iS., 


y 


4ilthougli  the  fourth  and  the  ^//>  articles  of  the  Treaty  of  Peace,  arc  tfiu» 
fotally  dilkiiift  and  unconnedlcd,  and  relating  to  difFercnt  objefts,  the  former  tO' 
all  creditors  cf  all  debts  he/ore  ccnira/lcd,  where  the  creditor  and  debtor  were 
c>!  different  Ji:!es,  without  any  dillindion  or  exception  of  real  Britifh  fubjefl  or 
American  Britilh  I'ubjed,  coniilcation  or  feqiicflration  ;— and  the  latter  to  confif- 
catcdeftates,  rights  and  properties,  (other  than  debts)  and  tolicnjupon  fuch  pro- 
perty, without  regard  to  the  fide  on  which  the  holder  of  of  fuch  lien  was  ;  and  al- 
though the  two  articles  arc  exprefled  in  language  plain,  concife  and  intelligible,' 
yet  ihe  Courts  in  the  United  States  have  made  a  diftindtion  in  fuits  brought  on 
tl'.e  faiih  oi  i\\s  fourth  article,  between  real  Britijh  Jubjeiis,  that  h  merchants  reji- 
diU  ill  Great  Britain,  and  Jm.-rican  Britifi  fiibjeits  or  loyalifts,  and  have  con- 
founded the  ftipulation  in  \\\e.  fourth  article  with  the  recommendation  in  the^/j& 
in  all  fuits  in  which  the  latter  have  been  plaintiffs.  This  conftruilion  was  well 
known  to  the  negociators  of  the  Treaty  of  Amity,  and  the  fixth  article  clearly 
embraces  the  cafe  of  thefe  fubjefts  by  the  expreflions  "  divers  Britifli  merchants 
and  ethers  his  Majejly' s fubjeBs ;"  this  article  however,  contains  no  ftipulation  for 
a  further  removal  of  lawful  impediments,  but  it  contains  an  exprefs  ftipulation  tO' 
compenfate  all  the  lofles  created  by  the  impediments  which  had  exifted. 

With  thefs  preliminary  obfervations,  the  General  Agent  for  Claimants  will 
proceed  to  examine  the  dilFerent  decided  cafes,  afFefting  the  debts  due  to  Britiftv 
fubjcfts,  attainted  or  profcribcd  for  adhering  to  the  Briiifti  fide  in  America. 


tpnffatfiufettgf. 


THE  firft  cafe  which  will  be  remarked  upon  is  that  of  A/wr^  v.  PaUh-^Thh 
fuit  was  brought  for  ihe  fole  purpofe  of  trying  in  the  Supreme  Court  of  the  State,- 
the  right  of  James  Putnam,  Efquire,  to  recover  a  debt  contrafted  before  the  re- 
volution and  due  by  a  citizen  of  MafTachufetts ; — the  debt  was  admitted  to  have 
been  bona  fide  contrafted  before  the  Peace,  and  that  it  remained  unpaid,  and  the 
following  ftate  of  fafts  was  fubmitted  to  the  Court, — ^"  And  the  parties  further 
"  agree,  that  the  faid  James  Putnam,  after  the  19th  day  of  April,  1775,  joined 
"  the  fleets  and  armies  of  the  King  of  Great  Britain,  removing  all  political 
"  and  civil  relation  to  this  Commonwealth,  then  State,  and  thereby  became 
"  an  alien,  of  which  the  faid  Jatnes,  at  a  libel  duly  profecuted  according  to 
"  law  at  a  Court  of  Common  Pleas  held  at  faid  Worcefter,  on  the  fecond  Tuef- 
"  day  of  December,  in  the  year  of  our  Lord,  1780,  was  convidled,  and  that 
"  the  faid  James  was  included,  named  and  profcribed  in  the  aft  of  this  Com- 
"  monwealth,  commonly  called  an  aft  for  confifcating  the  cftate  of  abfentees ; 
"  and  that  the  faid  James  Putnam  at  the  time  of  extending  the  faid  executions, 
"  and  executing  the  faid  deed  to  the  plaintiff,  and  at  all  times  after  the  faid  igth 

"day 


t     t7    ] 

"  d<^  of  April  until  his  deceafe,  nuas  an  alien,  being  a  fubjedl  of  the  faid  King 
"  01  Great  Britain,  holding  and  executing  a  commillion  under  him,  and  owing 
<'  allegiance  to  the  faid  King  and  his  government." 

The  above  is  dated  Sept.  1791.  The  (late  of  t^-.  cafe,  and  the  documents 
referred  to  in  and  accompanying  it,  prefenied  thj  following  points  to  the  view 
of  the  Court : 

I  ft.  That  the  debt  was  contrafled  before  the  peace,  and  remained  unfatisiied. 

2d.  That  the  creditor  was  a  Britifh  fubje£l,  and  had  never  been  a  citizen  of 
Maflfachufetts  after  the  Declaration  of  Independence. 

3d.  That  the  debtor  was  a  citizen  of  the  State. 

4th.  That  the  eftate,  real  and  perfonal,  of  the  creditor  had  been  confifcated, 
and  himfelf  profcribed. 

Although  from  the  loofe  mode  of  praSice  in  the  State,  the  Treaty  of  Peace  is 
r.v*  brought  into  view  on  the  record,  yet  it  was,  in  faft,  the  fole  ground  on 
which  the  arguments  for  the  plaintiff  proceeded  ;  it  was  impofllble  that  it  could 
be  kept  out  of  view,  and  as  it  was  not  only  a  public  law,  but  a  fupreme  law  of 
the  laid,  the  Court  were  bound  to  take  notice  of  it. 

Jurigment  was  rendered  for  the  Defendant. 


Murray  v.  Marian.     May,  i79i' 


THIS  was  an  aftion  of  debt  brought  in  the  Circuit  Court  of  the  United 
States,  in  the  Diftrift  of  Maffachufetts,  by  >;&«  Murray,  Efquire,  of  Saint 
Johns,  in  the  Province  of  New-Brunfwick,  againft  fTilliam  Marean,  of  Wor- 
cefter,  in  Maffachufetts,  or.  a  bond  dated  the  sth  of  March,  1773. 

On  the  record  it  appears. 

That  the  plaintiff  was  a  Britilh  fubjea,  the  defendant  a  citizen  or  inhabitant 
of  Maffachufetts,  and  the  debt  contrafted  before  the  peace. 

C  The 


'  "^T"* 


¥f 


T     '8    ] 

The  ilofL-nJant  admitting  the  debt,  relied  wholly  on  the  plea  of  the  aft  df 
confifcation,  '•  and  thai  thereby  the  governmetU  and  people  of  Maffachufetts 
were  declared  to  be  in  the  real  and  aftual  pofleflion  of  all  the  goods  and  chatCeU, 
rights  and  credits,  &c.  of  the  faid  J')hn  Murray,  without  fjrther  enquiry,  ad- 
judication, or  determination." 

To  this  plea  there  was  a  demurrer  and  joinder  according  to  the  fimple  formi 
cf  pradice  in  the  State  courts,  and  by  that  plea,  demurrer  and  joinder,  the  law 
of  the  State,  the  Treaty  of  Peace,  and  the  operation  of  both,  were  as  fully  be- 
fore the  court  as  they  could  be  by  any  of  the  prolix  and  expenfive  pleadings 
common  in  other  States. 

The  judgment  of  the  Court  is  on  the  validity  of  the  plea,  and  not  upon  any 
irregularity  or  departure  in  the  pleadings.  "  It  is  confidered  by  the  Court 
•'  that  the  plea  in  bar  is  good,  and  that  the  faid  John  Murray  recover  nothing 
"  by  his  writ,"  &c. 

Thefe  debts  being  feverally  under  two  thoufand  dollars,  no  appeal  or  writ  of 
error  could  be  profecuted. 

By  thcfc  decifions  the  point  was  fettled,  that  none  of  the  perfons  named  in 
the  laid  law  could  recover  any  of  the  debts  due  to  them  from  citizens  of  Mafla- 
cliufetts,  and  contrafted  before  the  profcription  and  confifcation  ;  and  yet  both 
thefe  plaintiffs  were  officers  of  the  Crown  before  the  revolution  ;  both  left  Maf- 
fachufetts  before  the  Declaration  of  Independence ;  and  neither  of  them  had 
been  even  tacitly  a  citizen  of  Maflachufctts,  or  any  other  State,  or  had  even 
been  within  the  limits  of  the  State,  or  had  been  guilty  of  traiterous  confpira- 
cies  againll  that  State,  any  more  than  Sir  Henry  Clinton,  Lord  Dunmere,  and 
Governor  Tryon,  had  againft  the  State  of  New- York ;  but  the  law  had  afted 
upon  them  as  traitors,  criminals,  and  confjiirators  ;  the  forfeiture  of  their  bona 
Jide  debts  had  been  legiflatively  inflifted  as  a  punifhment  for  a  fuppofed  crime, 
and  the  Courts  held  ttiemfelves  obliged  to  confider  them  as  criminals,  and  the 
forfeiture  as  complete. 

Thefe  are  the  only  two  decided  cafes  in  MafTachufetts,  in  which  the  cffeft  and 
operation  of  the  confpiracy  aft  were  brought  before  a  Court  in  fuits  between 
Hritifli  creditor  and  American  debtor;  but  there  is  another  document  before 
the  Board  in  the  Claim  of  Jonathan  Simp/on,  in  which  the  above  two  cafes  are 
referred  to,  and  which  is  entitled  to  all  the  weight  of  ?  judicial  decifion  : — It  is 
•  .1  official  report  of  the  Attorney  General  of  the  State  to  the  Houfe  of  Repre- 
fentativ...  on  a  queftion  relating  to  the  confifcation  of  a  Atht  d\xc  io  Jonathan 
Sjmpfon.  Speaking  of  the  aft  of  April,  1779,  he  fays,  "  By  this  aft  the  eftates 
*'  of  the  perfons  named  in  it  were  confifcated  without  any  further  trial  or  adju- 
"  dication,  as  has  been  fettled  by  the  judgment  of  the  Supreme  Judicial  Court 
"  of  this  State,  as  well  as  by  that  of  the  Circuit  Court  of  the  United  States." 

And  in  another  part  of  his  report  he  fays, — "  Upon  the  quedion  which  I  am 
"  direfted  to  anfwer,  whether  the  note  given  by //anv/ow  Gray,  Treafurer  to 
"'  Simfjht:,  is  the  propertyof  the  Commonweallh,  /  can  only  fay,  that  all  debts  due 

"  Jyoiit 


'""^..:* — .^m:^:^'SmmjL^ 


[     '9    I 

•'  from  individuals  or  bodiis  of  men  to  tho/i  per/on  i  nvho  art  namtd  in  the  aff  for 
"  confifcating  the  ejiates  of  perfons  called  confpirators,  were,  en  the  pajjing  that  a£t, 
"  vefled  in  the  ^onjernment  and  people  of  the  State,  ivho  are  fucceeded  bj  the  Com- 
"  monwealih,  ivi/hout  any  further  trial  or  adjudication  ;"—dHed  Bofton  January 

22d,   1795. 


n;n 


ALTHOUGH  the  General  Agent  for  Claimants  has  not  been  able  to  find 
that  any  judgment  has  been  rendered  aeainft  any  of  the  perfons  named  in  the 
aft  of  attainder  of  New  York,  yet  he  is  informed,  that  the  univerfal  opinion 
that  fuch  fuits  could  not  be  fuftained,  was  the  reafon  why  thofe  which  had  been 
inftituted  were  difcontinued  ;  but  the  liquidation  made  the  13th  of  June  1788, 
by  yohn  Slofs  Htbart,  Efquire,  one  of  the  Judges  of  the  Supreme  Court  of  the 
State,  of  the  debt  due  by  N.  Barlow  to  Bilhop  Inglii,  fubfequent  to  the  law  of 
February  22d,  1788,  repealing  all  afts  repugnant  to  the  Treaty  of  Peace,  and 
fubfequent  alfo  to  the  a£l  of  the  2 1  ft  of  March  1788,  relating  to  forfeited  ellates, 
is  tantamount  to  a  judicial  decifion,  that  no  part  of  the  aft  of  attainder  was 
deemed  to  be  repealed  by  the  law  of  February,  and  that  the  coUefUon  of  every 
debt  due  to  every  perfon  included  in  the  aft  of  attainder,  was  enjoined  by  the 
law  of  March  1788;  indeed  the  words  of  this  latter  law  are  too  plain  to  require 
the  aid  of  judicial  decifion  to  explain  and  fix  their  meaning  :— The  aft  of  at- 
tainder of  New  York  ipfo  faSo  attainted  and  convifted  the  perfons  therein 
named,  as  the  "  moft  notorious  offenders,"  and  clearly  proceeded  againft  them 
as  criminals  againft  the  State  :-^Such  is  the  declaration  in  the  law,  and  the. 
Legiflature  were  conftitutionally  prohibited  from  pai&ng  afts  of  attainder  for 
dimes,  "  other  than  thofe  committed  before  the  termination  of  the  then  war." 


il^ortB  Carolina, 

IN  the  State  of  North  Carolina  perfons  of  a  certain  defcription  were  called 
upon  by  law,  either  to  take  an  oath  of  allegiance  and  abjuration  or  depart  the 
State,  leaving  it  optional  with  thofe  perfons  to  adhere  to  their  native  original  alle- 
giance, or  to  become  citizens  of  the  new  government :— Their  debts  which  re- 

mainedr 


■j,*_^^llg^t*mmrr 


■w«ir--, !».»».- 


[      20      J 

maincd  uncolleflcd  were  afterwards  confifcated,  as  well  as  their  real  eftates  which 
had  not  been  difpofed  of  for  a  valuable  confideration  aftually  paid  before  their  de- 
parture ;  but  there  was  no  attainder  of  their  perfons  for  adhering  to  the  firiti(h 
government,  no  Legiflative  convidlion  of  crime  on  that  account : — Their  depar- 
ture had  been  acquiefced  in  by  the  Hate.  Yet  it  was  not  until  1796,  chat  any 
judgment  or  recovery  by  any  of  thefe  Britilh  creditors  could  be  had  and  obtained 
in  North  Carolina,  and  in  the  opinion  delivered  by  Chief  Jullice  El/ivorih,  there 
is  to  be  found  the  moft  decided  proof,  that  if  they  had  been  attainted  and  con- 
viftcd  for  that  adherence,  inftead  of  being  permitted  foto  adhere,  they  could  not 
recover  their  debts.  "  It  is  true  (fays  the  Chief  Juftice)  that  on  the  fourth  of 
July  1776,  when  North  Carolina  became  an  independent  State,  they  were  in- 
habitants thereof  though  natives  of  Great  Britain,  and  they  might  have  been 
claimed  and  holden  as  citizens,  whatever  were  their  fentiments  and  inclinati- 
ons. But  the  State  nfteriuards,  in  1777,  liherally ga've  to  thetn,  <with  othert  Ji- 
milarly  circumjianced,  the  option  of  taking  an  oath  of  allegiance ,  or  of  departing, 
iic.  They  chofe  the  latter,  and  ever  after  adhered  to  the  king  of  Great  Bri- 
tain^ and  mud  therefore  be  regarded  as  on  the  Britilh  fide. 

Again,  the  Chief  Juftice  in  fpeaking  of  the  States  in  which  Britifli  debts  were 
fequefteredor  confifcated,  obferves, — "  Civil  war,  which  terminates  in  the  feve- 
•'  ranee  of  empire,  does  perhaps,  lefs  than  any  other,  juftify  the  confifcation  of 
'■  debts,  becaufe  of  the  fpecial  relation  and  confidence  fubfifting  at  ihe  time 
"  they  were  contrafted,  and  it  may  have  been  owing  to  this  confideration  as  well 
"  as  others,  that  the  American  States  in  the  late  revolution,  fo  generally  forbore 
«'  to  confifcate  the  debts  of  Britilh  fubjefls. — In  Virginia  they  were  only  fequef> 
••  tered.  in  South  Carolina,  all  debts  to  whomfoever  due  were  excepted  from 
"  confifcation,  as  were  in  Georgia  thofe  oi Britijh  merchants  and  others  refidingin 
"  Great  Britain;  and  in  the  other  States,  except  this,  I  do  not  recolleSl  that 
"  British  Debts  ivere  touched" — (Hamilton  v.  Eaton),  As  it  is  impoilible  to 
fuppofe  the  Chief  Juftice  to  have  been  unacquainted  with  the  feveral  laws  of  the 
States  of  Maffachufeits,  Connefticut,  Rhode  Ifland,  New  York,  New  Jerfey, 
Pennfylvania,  and  Georgia,  profcribing  and  attainting  the  perfons,  and  confif- 
cating  the  eftates  of  and  debts  due  to  thofe  who  adhered  to  the  Biitifll  government, 
it  is  evident  he  does  not  confider  the  debts  due  to  Dodlor  Inglit  or  to  the  prefent 
Claimant,  as  Britifh  debts,  becaufe  the  States  of  New  York  and  Pennfylvania  did 
not  confent  to  their  exercifing  a  natural  and  inherent  right.  The  above  opinion 
was  delivered  a  few  months  fubfequent  to  the  decifion  of  the  Supreme  Court  in 
the  cafe  of  Jones's  Executors  v,  Hjlion, 


Archibald  (^  fohn  Hamilton 
•v. 
William  Moore. 


7  Circuit  Court  of  the  United  States 
y     Diftrift  of  Georgia. 


THIS  was   an  adion  of  debt  on  a  bond  dated  19th  of  April  1776,  for 
Cso<j0  2  Virginia  currency,  brought  to  April  term  1793.     The  debt  was  con- 

trafled 


:.jiH*si.- 


[  "  ] 

traAed  iii  North  Carolina  where  both  parties  then  refided,  but  the  defendant 
had  lately  removed  to  Georgia.  The  record  dates  the  plaintiffs  to  be  aliens  and 
natural  born  fubjeAs  of  His  Britannic  Majefty,  and  the  defendant  to  be  of  Wilkes 
county  in  the  State  of  Georgia. 

To  this  (uit  the  defendant  pleaded  the  a£ls  of  confifcation  in  North  Carolina, 
the  payment  of  the  debt  into  the  treafury  of  that  flate,  and  the  afl  of  Georgia 
which  confifcated  all  the  eftates  and  debts  in  Georgia  (except  debts  due  to  Britilh 
merchants  refiding  in  Great  Britain)  due  to  fuch  perfons  as  were  named  in  the 
confifcation  a£ts  of  other  States,  in  the  fame  manner  as  fuch  cflates  and  debts 
were  confifcated  in  thofe  States. 

To  thefe  pleas  there  was  a  demurrer  and  joinder,  This  caufe  came  on  before 
the  Honourable  IVilliam  Pater/on,  Efquire,  and  the  Honourable  Jo/eph  Clay, 
Efquire,  Judge  of  the  Diftrif^  Court,  on  Tuefday  the  :5th  November  1796. 
fubfequent  alio  to  the  decifion  of  Jones  v,  Hylton,  and  the  demurrer  was  over- 
ruled and  judgment  rendered  for  the  defendant. 

The  following  is  the  fubllancc  of  the  opinion  of  the  Court  as  delivered  by 
Judge  Pater/on, 

"  That  Meflrs.  Hamlltoni  were  not  to  be  efteemed  real  Britift-  fubjefts,  and 
that  they  were  not  entitled  to  claim  as  fuch  the  benefits  extended  to  real  Britifh 
fubjeAs  by  the  Treaty  of  Peace. — That  being  within  the  United  States  ic  the 
time  of  the  Declaration  of  Independence,  and  remaining  therein  after  that 
period,  it  muft  be  prefumed  that  they  made  their  election,  and  that  by  continu- 
ing in  North  Carolina  for  fometime  (it  mattered  not  how  long  or  how  fhort  that 
was)  they  virtually  became  fubjedt  thereto ;  that  the  confifcation  laws,  which 
afterwards  in  confequence  of  their  flill  refuflng  to  take  the  oaths  to  the  State, 
and  of  the  other  fleps  taken  by  them,  muft  be  allowed  cfFeftually  to  bar  their 
recovery  of  any  of  their  former  property  defignated  by  thofe  afts,  and  that  this 
muft  be  the  cafe  with  their  debts,  even  in  cafes  where  their  debtors  had  not  paid 
into  the  treafury. — That  had  MefTrs.  Hamilion  been  what  he  confidered  as  real 
Britijh  fubjedts  they  muft  have  recovered,  notwithftanding  any  confifcation  laws 
or  other  impediments  of  what  kind  foever,  becaufe  the  Treaty  of  Peace  muft  be 
kept  inviolably  facred,  but  as  he  could  not  confider  them  as  fuch,  he  muft  decree 
that  the  plea  of  the  defendant  in  bar  was  fuftained." 

Upon  this  judgment  being  rendered  the  plaintiff  determined  to  take  out  his 
writ  of  error  ; — but  as  errors  were  to  be  afligned,  and  thirty  days  previous  notice 
to  be  given  to  the  oppofite  party,  it  was  not  poflible  to  have  this  done  in  time 
to  be  at  the  feat  of  government  by  the  enfuing  Supreme  Court,  and  by  fome 
flrange  inadvertence,  the  writ  was  filled  up  with  a  term  intervening  between  the 
tefte  and  return  days,  and  was  of  courfe  nonpros^ J;  ^3  Dallas.)  And  as  the  whole 
large  eftate  of  the  defendant  had  been  made  away  with,  or  covered  with  other 
judgments,  the  expence  of  a  new  writ  was  thought  unneceflary. 

While  it  is  believed,  that  the  learned  Judge  on  more  full  confideratlon  of  the 
aft  of  North  Carolina,  (which  probably  had  not  been  fully  explained  by  the 

counfel 


'«fc.-."i>;^j|.  ^».», 


r  "  ] 

counfcl  !n  Georgia)  would  have  inclined  to  the  opinion,  that  the  plaintifts  with' 
ilif  aflent  of  the  government  of  North  Carolina,  had  made  theircledtion  to  con- 
tinue britifti  fubjefts  inftead  of  becoming  citizens,  yet  the  opinion  delivered  by 
him  in  this  cafe  fully  juftifics  the  aflcrtion,  that  all  the  ftrong  and  general  ex- 
preflions  midc  ufc  of  a  few  months  before  by  the  fame  Judge,  in  the  cafe  of 
"Jonti  V.  Hytion,  were  meant  to  be  applied  to  (uch  creditors  as  FarreJ  tind  Johis, 
merchants  of  Briftol,  who  had  always  refided  in  England,  and  not  to  American 
Lritifh  fubjcfts,  whole  debts  had  been  forfeit.  J,  and  themfelves  profcribed  for 
refufing  to  abjure  their  original  allegiance,  and  to  become  citizens  of  the  United 
States. 


\>»i 


(Dtotgia. 


THE  State  of  Georgia  paflied  its  laws, — Firft  "  An  A£l  for  attainting  fuch 
"  perfons  as  arc  therern  mentioned,  of  high  ticafon,  and  for  confifcating  their 
"  eftatcs  real  and  perfonal,"  &c.  And  Jecondly.  «•  An  Aft  for  infliAing  penalties 
"  on,  and  confifcating  the  cftates  of  fuch  perfons  as  are  therein  declared  guilty 
"  of  high  treafon,  and  for  other  purpofes  therein  mentioned"" 

From  the  face  of  thefe  a£ls,  and  from  the  pofition  Georgia  afTumed  when  the 
oppofition  to  the  a£\s  of  the  Britifh  Parliament  took  place  in  the  other  colonies, 
fome  material  points  are  apparent. 

The  lirfl  of  the  afls  above  alluded  to,  conta  ns  in  its  preamble,  a  declaration 
that  the  King  of  Great  Britain  on  the  19th  of  April  1775,  did  commence  a 
cruel  and  unjuft  war  againll  the  good  people  of  America,  and  that  thereby  he 
6\i  forfeit  inA  forefault  every  right  and  title  to  the  allegiance  of  the  faid  people, 
and  that  the  powers  of  government,  incapable  of  annihilation,  did  devolve 
upon  the  people  for  the  exercife  "  of  the  fame,  and  the  faid  people  did,  as  of 
"  right  and  juftice  they  ought,  enter  into  a  full  exercife  thereof  for  their  com- 
"  mon  fafety;" — and  alTuming  the  faid  19th  of  April  1775,  as  the  time  at  which 
all  allegiance  was  transferred  uom  the  king,  and  reverted  to  and  devolved  upon 
the  powers  which  aiTumed  the  right  and  exercife  ;  the  aft  proceeds  "  and  ivhert- 
"  ai,  various  perfons  inhabitants  of  this  State,  in  contempt  of  the  faid  allegi^ 
"  ance  and  duty  fo  transferred  as  aTorefaid,  did  traiteroufly  avoid  the  fame,  &c. 
"  and  whereas,  it  is  but  reaibnable  and  jud,  that  the  ellates  both  real  and.perfonal 
"  of  all  fuch  perfuns  reHding  within  this  State,  on  or  flnce  the  faid  19th  day  of 
"  April,  ivho  hawe  refufed  their  allegiance  to  the  governing  pcwers  (hould  be  for- 
*•  feited  and  confifcated,"  &c.  And  the  aft  then  proceeds  to  attaint  Sir  Jamei 
Wright  His  Britannic  Majefty's  Governor  of  the  province  of  Georgia,  Jamt 

Hume, 


[  *.1  ] 


and  afterwarJs  Chid 
of  others  who  had  left 


Humf,  Efqu'ire,  the  Attorney  Gener«l  of  the  faid  King, 

Jufticeofhii  province  of  Kail  Florida,  and  a  number  _.  

Georgia  long  before  the  Declaration  of  Independence,  who  never  had  been  even 
inhabitants,  much  left  citizens  of  the  State,  and  who  on  the  faid  i9thday  of  April 
1775,  were  in  the  adtual,  peaceable  and  legitimate  exercil'c  of  the  powers  of 
government  ir  ihc  then  province  of  Georgia. 

The  faft  is,  that  the  province  of  Georgia  had  not  united  with  the  other  colo- 
nies in  April  1775,  but  had  refufed  fo  to  do— Georgia  had  not  been  rcprefcntcd 
in  the  firil  Congrcfs,  or  in  the  firft  fefllon  of  the  fecond  Congrefs ;  it  was  not  until 
the  15th  July  1775,  that  any  dclcfjates  were  appointed  from  that  then  province, 
and  then  were  appointed,  "  to  do,  tranfafl,  join,  and  concur  with  the  feveral  dc- 
<<  legates  from  the  other  colonies  and  provinces  upon  this  continent,  in  all  fucK 
"  matters  and  things  as  (hall  appear  eligible  and  fit  at  this  alarming  time,  for 
"  the  prefervation  and  defence  of  our  rights  and  liberties,  and  for  the  reftoration 
"  of  harmony  upon  the  coiiAitutional  principles  between  Great  Britain  and 
"   America." — {^Firjl  Journals  efCcngre/s,  97,   172,   195.) 

The  (irdfeflion  of  the  aft  of  1781,  attaints  by  name  the  individuals  mentioned 
in  the  firll  aft,  and  feveral  others,  "  for  traiteroufly  adhering  to  the  King  of 
"  Great  Britain,"  &c.  but  none  of  the  perfons  fo  named  are  called  citizens  of 
Georgia;  one  is  partictilarly  called  oi South  Carolina  ;  Bajil  Co'wper,  and  IVilliam 
Telfair  two  of  the  perfons  named,  were  merchants  reflding  in  London  ;  and  the 
heirs,  devifees  and  afligns  of  others,  are  attainted  without  any  name. — When  the 
Legiflature  chofe  to  refer  to  citizens  of  the  State,  they  ufed  the  proper  cxprefli- 
on,  as  in  the  third  feftion  of  the  aft  of  1782. 

The  ftrong  fimilarity  between  the  laws  of  Georgia  and  th.i  aft  of  attainder  of 
New  York,  juftify  the  application  of  decifions  under  one  to  the  cafes  of  perfons 
included  in  the  other,  had  they  brought  fuits. 

This  leads  to  the  c&k  of  Douglaji  v,  Stirke,  in  the  Circuit  Court  of  the  United 
States  for  the  North  Carolina  dillrict.  May  term,  1792. 

From  a  certified  copy  of  the  record  in  this  cafe  it  appears,  that  Samuel  Doug, 
lafs  of  the  ifland  of  Jamaica  is  plaintiff,  James  Greenbow  of  Effingham  in  the 
State  of  Georgia,  planter,  and  Hannah  his  wife.  Executors  of  John  Slirke,  de- 
fendants, and  the  debt  to  have  been  contrafted  before  the  war. 

The  debt  is  admitted,  and  the  defendant  relies  fr:  his  plea  upon  the  afts  of 
attainder  and  confifcation  of  Georgia :— The  plaintiiF  replies  with  the  Treaty  of 
Peace,  and  the  conilitution  of  the  United  States  making  the  fame  the  fupremc 
law  of  the  land  : — On  demurrer  the  following  judgment  is  given  :— 

"  All  and  Angular  the  premifes  being  fecn,  and  by  the  Court  now  here  more 
"  fully  underftood,  and  mature  deliberation  being  thereon  had,  it  feems  to  the 
«•  faid  Court,  that  the  plea  aforefaid  by  the  faid,  &c.  in  manner  and  form 
*'  pleaded,  and  the  matter  in  the  fame  contained,  are  good  and  fufiicient  in  law 
"  to  preclude  the  fame  Samuel  Dougla/s  from  his  aftion  aforefaid,  &c." 

Thus, 


''S'-'^y^ar  'iw«JS-, 


mmm 


mm 


■■n 


[    H    J 

Tliii.-,  we  have  the  authority  of  the  late  Chief  Jurtice  of  the  United  States,  tiv« 
prefent  Chief  Jullice,  Judge  Cujhi!:^,  Judge  Pater/on,  and  Judge  Ii-etiei/,  be- 
iiJcs  the  diftria  Judges  Lcivtll,  Peitiil  ton,  and  Clay,  the  Judges  of  the  Supreme 
Court  >.f  Maffachulk-tts,  the  official  letter  of  the  Attorney  General  of  Maffachu- 
fftt:,  aiid  the  liquidations  of  the  Judges  of  the  Supreme  Court  of  New  York^ 
in  (upport  of  the  affer'.ion,  that  '«  in  the  ordinary  courfe  of  judicial  proceedings, 
Britilh  fubjtfts  who  were  attainted  by  American  Legiflatures,  cannot  recover 
their  jull  debts ;  and  that  diftinftions  in  the  American  Courts  are  made  between 
American  Britilh  fubjefts  and  re&l  Britilh  fubjeds  ;  and  it  is  evident,  thr.t  no 
fuch  dirtiiiaion  is  to  be  found  in  the  fourth  article  of  the  Treaty  of  Peace. 


A  FEW  ["marks  will  now  be  made  upon  attainders  in  Pennfylvania :— 
Thefe  are  of  three  kinds, 

FirJ},  by  being  particularly  named  in  the  aft  of  attainder, 

Secomily,  By  being  called  upon  by  proclamation  of  th^;  Supreme  Executive 
Council,  to  furrender  and  abide  a  trial,  and  neglefting  to  comply. 

Thirdly,  By  conviftion  on  indidment,  or  procefs  to  outlawry. 

The  tirft  of  thefe  could  not  be  controuled  by  the  Courts,  and  could  only  be  re- 
verfed  by  an  a£t  equal  to  that  which  in flifted  the  penalty.  The  power  of  the 
Legiflaturc  could  not  be  queftioned,  and  if  they  had  attainted  vi  wandering  Tar- 
ter k  eating  horfe  flefti,  a  Turkilh  Mufti  for  refufing  Madeira,  or  an  Indian 
Sachem  for  drinking  too  much  rum,  and  either  of  them  had  afterwards  been 
found  within  the  State,  the  Courts  would  be  obliged  to  confider  them  as  traitors. 

As  to  tiic  fecond  clafs,  the  power  delegated  by  law  to  the  council  being 
fpecial,  if  a  ^erfra  attainted  by  proclamation  in  due  form  had  b£en  found  in  the 
State  before  the  Peace,  his  innocence  cr  guilt  would  have  been  immaterial ;  two 
queftions  and  o  ily  two  could  have  been  brought  before  a  Court :  Firft,  as  to  the 
identity  of  pcrfon ;  fecond,  whether  he  had  became  a  citizen  of  the  State,  before 
the  allt'ged  a£l  of  treafon  ;  becaufe  the  power  of  the  council  was  confined  to  iffuc 
proclamations  railing  upon  Inhabitants  or  citizens  of  the  State, 

The  third  clafs  being  for  ciimcs  found  by  a  jury  to  have  been  committed 
within  the  body  of  a  county,  need  not  be  remarked  on  here ;  judgments  on  im- 
proper convidions  .night  have  been  arrefted,  or  informal  outlawries  reverfed. 

A 


[     -'5     1 

A  decifion  of  the  higbeft  authority  in  Pennfylvania  on  an  attainder  of  the 
fecond  dcfcription  will  cilablilh  clearly  thf  fe  points. 

Firjl,  That  Mr.  Allen  was  a  Britilh  fubjeft. 

Second.  That  he  never  was  a  citizen  of  the  State  of  Pennfylvania,  and  com- 
mitted notreafon  againd  it. 

Third.  That  notwithllanding  this,  he  is  confiJereJ  as  lawfully  attainted, 
and  of  courfe  incapable  of  maintaining  any  civil  fuits  for  any  debts  contraded 
in  Pennfylvania  prior  to  that  attainder. 

It  is  here  admitted,  that  after  the  Treaty  of  Peace,  no  criminal  profecution 
would  have  been  permitted  againll  Mr.  jillen  on  account  of  the  faid  attainder, 
but  it  is  infilled,  that  the  confifcation  pf  the  debts  due  to  him  before  would  not 
have  been  confidered  as  annulled  becaufe  accompanied  by  attainder  ;  as  for  the 
pardon  which  fome  of  his  friends  applied  for  without  his  knowledge,  and  before 
his  arrival  in  the  country,  it  was  ii  mere  piece  of  wafte  paper,  as  to  any  opera- 
tion it  could  have  in  enabling  him  to  recover  the  debts  which  had  been  paid  into 
the  treafury.  It  is  not  to  be  fuppofed  that  Mr.  Allen  would  have  impoliiely 
thrown  away  or  refufed  ac  spting  the  paper,  which  the  afFeftion  of  his  old 
friends  had  induced  them  tufolicit,  nor  does  the  General  Agent  know,  whether 
Mr.  Jllen  ever  did  really  fee  the  pardon,  or  a  copy  ;  this  he  well  knows,  tha,' 
the.  -i  is  no  power  in  the  Gover  lor  to  draw  out  the  money  paid  into  the  treafury 
by  the  debtors  of  Mr.  Allen,  oi  lO  enable  Mr.  Allen  to  recover  it  from  the  debt- 
ors themfelves.  Nor  could  that  pardon,  or  any  other  adlof  the  Governor,  natu- 
ralize or  make  a  citizen  of  a  Britifh  fubjefl. 

The  decifion  alluded  to  above  is  in  the  cafe  of  the  Commonwealth  of  P^nn/yl- 
•vania  V,  Chapman,      i  Dallas,  53. 

As  this  cafe  is  reported  at  large,  the  General  y^gent  will  content  himfelf  with 
barely  Aating  the  points  which  appear  clearly  to  be  admitted  or  decided.— 
They  are  thefe. 

FirJ}.  That  in  civil  wars  every  man  chufes  his  party,  and  that  Pennfylvania 
was  not  a  nation  at  war  with  another  nation,  but  in  a  flaic  of  civil  war. 

Second.  That  on  the  difTolution  of  the  old  government,  although  th?  voice  of 
the  majority  mud  be  conclufive  as  to  the  adoption  of  the  new  fyRetn,  yet  that 
the  minority  have  individually,  an  unreftrainable  ri^ht  to  remove  with  their 
property  into  another  country,  and  that  a  reafbnable  time  .liould  be  allowed  for 
that  purpofe,  and  that  none  are  fubjedis  of  the  adopted  government  but  th..  fe 
who  had  freely  aflented  to  it. 

Third.  That  the  Legiflature  allowed  a  :hoice  of  his  party  to  every  man  until 
the  nth  of  February  1777,  and  that  no  aft  favouring  of  treafon,  done  before 
that  period,  fliould  incur  the  penalties  of  the  law  of  that  date,  which  had  no 
retrofpefl. 

D  Fourth. 


r  ' 


m 


r 


[  26  ] 

Foi.nh.  That  there  was  a  fufpcnfion  of  all  laws  from  14th  May  1776,  until 
I  ith  of  l\bruary  1777,  and  if  there  were  no  laws  to  be  obeyed,  no  otie  v.ould 
l)c  Jtxi:  ,d  a  iubjcd  ot  the  State. 

nnh.  That  ncvcriiiclefs,  although  ^x  fofl  facio\vfi%  generally  fpeaking  are 
iiiiiull  and  improper,  yet  the  Legiftature,  if  they  were  imprefled  with  the  necef- 
fuy  of  the  cafe,  had  incontrovertibly  a  right,  to  declare  any  pcrfon  a/r«/Vorwhff 
had  gone  over  10  the  enemy,  and  Hill  adhered  to  them. 

The  rcfuhwas,  \!n?iX  Samuel  Chapman  the  defendant,  who  was  born  in  Bucks 
county  l'cn!iry)>'3nia,  aiui  who  continued  to  refide  there  until  December  1776, 
long  artcr  the  Declaration  of  Independence,  was  neverthelefs  a  Britilh  fubjeft, 
and  not  a  fulijcd  of  the  State,  and  therefore  not  a  perfon  whom  the  Council  were 
authorized  to  attaint,  and  he  was  accordingly  acquitted. 

The  inference  from  the  laft  point  is,  that  Mr.  Jllen,  who  was  equally  a  Britifh' 
fubjeft,  who  h.id  equally  a  right  to  make,  and  did  adlually  make  his  eleftion, 
.^nd  who  had  committed  no  treafon  againft  a  State  in  which  there  were  no  laws 
to  obey,  was  neverthelefs  legally  made  a  traitor  by  the  omnipotence  of  a  Legifla- 
tivc  aft.  It  is  evident  from  whf  has  been  ftated,  that  Mr.  Alien  is,  and  from 
his  birth  has  been  a  Britifh  fubjeft,  as  well  as  Biihop  Inglii,  and  of  courfe  en- 
titled tocompenfation  for  debts  loft  by  the  operation  of  lawful  impediments  con- 
trary to  the  'frenty. 

Aftrr  the  unanimous  decifion  of  the  Board,  that  the  Bifliop  of  Nova  Scotia  is 
to  be  considered  as  a  fubjedlof  His  Britannic  Majcfty  within  the  meaning  of  the 
Treaties,  and  the  refolution  moved  by  one  with  the  approbation  of  two  other 
Commiffioncrs  (being  a  mniority  of  the  Board)  that  proceedings  at  law  now, 
in  fuch  cafes,  are  not  requii.te,  and  that  the  laws  and  decifions  on  them  already 
laid  before  the  Board  were  fuch  as  to  fatisfy  the  confciences  of  that  majority, 
that  fuch  proceedings  would  be  as  hopelefs  as  unneceflary,  the  General  Agent  for 
Claimants  would  not  have  prefumed  to  offer  any  remarks  on  that  part  of  the 
anfwer  in  this  cafe,  which  ftates  that  the  Claimant  can  have  redrefs  on  the  equi- 
ty fide  of  the  Federal  Courts.  The  order,  however  of  the  12th  of  March,  to 
reply  to  certain  points  therein  fuggefted,  in  addition  to  thofc  made  in  the  an/ix>er, 
mull  be  his  apology,  as  well  for  the  repetition  of  former  obfervatiotvs,  as  for  the 
addition  of  the  others  contained  in  the  preceeding  pages. 

The  points  fuggefted  in  that  order  will  now  be  obferved  upon,  and  if  that  order 
had  never  been  made,  the  points  therein  fuggefted  would  have  been  the  only 
ones  confidered  in  the  reply  of  the  General  Agent  for  Claimants;  y//«/aclear 
ftatement  of  the  fituation  a  i  rights  of  the  contrafting  parties  at  the  time  the 
Claimant  was  attainted,  w.iile  it  will  obviate  the  points  fuggefted  in  the  order, 
will  at  the  fame  time  prove,  that  the  monies  due  to  him  are  not  an  equitable 
charge  on  th:  lands. 

Mr.  .-////,'/  fold  to  the  feveral  perfons  mentioned  in  his  memorial,  certain  traft? 
of  land  in  the  county  of  Northampton,  and  in  order  to  fecure  the  payment  of  the 


purchnfe  money,  notwithftandinc 


the  purchafcis  took  pofleffion  of  the  lands, 

he 


t  27  ] 

Tie  retained  his  original  fee  fimple,  of  whicli  he  was  not  to  be  divclleJ,  unlcfs  he 
received  a  part  of  the  money,  and  had  the  land  re-conveyed  to  him  by  way  of 
mortgage,  for  the  refidue ; — Mr.  Allen  never  had  an  equitable  charge  on  the 
lands,  nor  did  he  or  the  purchafers  ever  entertain  an  idea,  that  in  any  poiltbic 
contingency,  he  (hould  acquire  fuch  an  equitable  charge. — In  the  firft  inllance 
and  before  conveyance,  the  bond  or  articles  of  agreement  manifefted  the  term* 
of  the  purchafe,  a  compliance  with  which  by  the  purchafer  was  efFeftually  lecur- 
ed  by  the  feller's  retaining  the  fee.— In  the  fecond  inllance,  and  after  a  convey- 
ance made  by  the  feller,  the  mortgage  executed  by  the  buyer  would  have  re- 
placed the  fee  fimple  in  the  feller,  with  him  to  remain,  until  he  received  his 
purchafe  money  :  fo  that  in  each  cafe,  the  right  of  the  feller  was  a  ftridly  Icg^l 
one,  kept  up  for  the  exprefs  purpofe  of  compelling  payment  of  a  debt. 

As  Mr.  Allen  never  conveyed  the  ftrift  legal  title,  it  may  not  be  amifs  to  flicw 
what,  agreeably  to  the  laws  and  cuftoms  of  Pennfylvania,  were  the  rights  of  the 
purchafers.— -By  their  contrails  and  pofTeflion  they  obtained  equitable  titles  to 
their  lands,  under  which  they  Could  either  recover  or  defend  in  ejeftment ; — 
By  complying  with  their  contradls  they  had  a  right  to  a  conveyance  of  the  legal 
fee  from  the  Teller,  nor  could  they  be  lawfully  turned  out  of  pofleflion  by  the 
feller,  by  ejeftment  or  otherwife,  even  after  a  breach  of  contraft  by  not  being 
.punctual  in  the  firft,  or  any  other  inftalment,  if  at  any  time  before  trial  they 
were  ready  to  comply  with  their  contradl ;  and  although  the  lands  from  any  cir- 
camftances  might  have  increafed  fifty  fold  in  value,  legal  intereft  from  the  time 
the  payment  ought  to  have  been  made  wouUl  be  all  the  additional  fum  the  feller 
<ould  recover  : — The  rights  of  the  feller  to  recover  the  price  of  the  land  agreeably 
to  the  contrafl  and  the  bonds,  from  the  perfons  of  the  purchafers,  was  ftriilly 
legal ;  his  right  in  the  land  was  purely  legal  ;  he  had  no  merely  equitable  right, 
either  to  the  money  or  in  the  land  4  the  title  of  the  buyer  was  equitable  : — It 
therefore  conclufively  follows,  that  the  Agent  of  the  United  States  has  mifapplied 
hiseqaity,  by  contending  that  Mr.  Allen  h?iA  an  equitable  charge  upon  the  lands, 
as  all  equitable  title  was  on  the  part  of  the  buyer,  and  the  mere  legal  title  re- 
mained in  the  feller,  fubjeft  to  the  equity  of  the  buyer  ;  an  equity  which  follow- 
ed the  lands,  an  equity  which  the  Commonwealth  held  facred,  and  which  the 
buyers  could  enforce  againft  the  Commonwealth  in  the  fame  manner,  that  they 
could  have  enforced  it  againft  Mr.  Allen  ;  hence  therefore,  although  the  Com- 
monwealth fold  the  confifcated  real  eftate  of  Mr.  Allen  in  other  counties  at  public 
fale  to  the  higheft  bidder,  they  only  received  the  debts  due  from  the  Northamp- 
ton purchafers,  (his  debts  as  well  as  lands  having  been  confifcated)  and  on  fuch 
receipts,  a  legal  title  was  given  in  addition  to  the  equitable  title  they  before  had. 

If  Mr.  Allen  had  mortgaged  thefelands  inftead  of  felling  them,  the  legal  title 
would  have  been  in  the  mortgagee,  but  yet  the  lands  would  have  been  confifcated 
and  fold  fubjeft  to  the  mortgage;  the  legal  title  being  only  a  collateral  fecurity 
for  a  debt.  If  the  purchafers  under  the  article,  had  been  attp'nted  inllead  of 
Mr.  Allen,  the  lands  would  have  been  forfel'^d,  and  the  legal  title  retained  by 
Mr.  Allen  would  have  been  confidered  only  as  a  fecurity  for  a  debt. 

Had  Mr.  Allen  conveyed  thefc  lands  to  a  third  perfon  after  the  execution  of 
the  above  article,  the  grantee  would  be  confidered  in  Pennfylvania,  only  as  the 
alfigneeof  adebt,  and  could  recover  nothing  but  tlie  debt.  If 


f 


w 


m 


,*Sa6:#jS».i-"'-i'v 


■"<!i_P  !.*• 


•mm^fr^ 


wmmmim 


[ 


2S 


J 


ir  1 

■;*■ 


^11 


i.  Mr.  J'llcn  iuiL-aJ  of  retaining  liii  original  till.',  had  atflually  conveyed  to 
the  purchal'trs,  ami  then  taiten  a  mortgage,  he  would  have  been  in  JIntii  quo,—- 
he  wmilii  have  had  the  bonds  of  the  purchafers  for  the  debts,  he  would  have  had 
the  legal  title  ot'  the  land  as  his  (bcurity  j  the  State  would  have  colle6\ed  the 
debts,  and  tticy  would  then  have  done  what  is  tantamount  to  the  deeds  they  have 
given  ;  they  would  have  dircdted  faiisfaftion  to  have  been  entered  on  the  record 
olthe  mortgage,  which  is  equivalent  in  Pennfylvania  to  a  reconveyance  of  the 
fee.  As  the  cafe  now  (l;inds,  Mr.  Allen  has  the  contrafls  and  bonds  of  his 
debtors,  and  retains  the  evidence  of  his  legal  title  as  his  fecurity  ;  and  it  appears 
impoffible  in  the  eye  ofreafon,  equity,  and  julllcc,  to  diicriminatc  between  his 
rights  in  one  cafe  and  the  other. 

So  alfo,  in  another  point  of  view,  the  purchafers  were  like  all  other  fee  fimple 
owners  of  lands  in  the  Stale.  Had  a  Commiflioner  of  confifcated  eftates  attempt- 
ed to  turn  any  of  them  out  of  pofleflion,  they  would  have  been  entitled  to  their 
remedy  and  damages  at  law,  as  perfeftly  as  they  would  have  been  entitled 
;igainll  Mr.  Allen,  if  he  had  at  any  time  forcibly  difpoflefled  one  who  had  been 
ilelinqucnt  in  paymcn',  inftead  of  taking  his  remedy  by  fuit.— If  one  of  thefe 
purchafers  had  died  inteilate  before  the  payment  of  the  debt  into  the  treafury, 
.'eaving  a  widow,  two  fons,  and  perfonal  property  fufticient  to  pay  his  debts,  the 
widow  would  be  entitled  to  her  dower,  the  eldeft  fon  would  have  been  entitled  to 
two  ihares,  the  younger  to  one  fliarc  of  the  land,  partition  or  valuation  of  it 
might  have  been  had,  as  of  other  fee  fimple  eftates,  and  on  application  to  the 
Court  and  payment  of  the  debt  of  the  anceftor,  due  to  Mr.  Allen,  into  the  trea- 
fury of  the  State,  a  conveyance  or  conveyances  of  the  legal  title  would  have  been 
executed,  cither  to  one  fon,  if  the  eitate  had  been  valued  as  incapable  of  divifion 
without  injury,  or  to  both,  according  to  the  inteftate  law,  and  agreeably  to 
their  feveral  interell.'!,  >f  the  eftatc  had  been  capable  of  divifion  But '.vould  the 
fons  thus  veiled  with  the  title  conveyed  by  the  deed  of  the  State,  be  confidered 
as  purchafers  or  as  heirs }  llridly  and  legally  fpeaking  they  are  puichafers  ;-— 
but  in  Pennfylvania,  lands  inherited  by  and  in  the  pofleflion  of  heirs,  or 
purchafers  rnder  them,  arc  aflTets  for  the  payment  of  the  debts  of  the  anceftor 
from  whom  thofe  lands  defcended  ;  and  if  any  debts  due  by  the  deceafed  pur- 
chafer  under  the  articles  from  Mr.  Allen,  had  been  brought  forward,  even  after 
the  deeds  from  the  State  to  the  heirs,  and  no  perfonal  aflets  were  left,  thefe 
lands  would  be  liable  in  the  hands  of  the  heirs  for  the  debts  of  the  anceftor, 
notwithlianding  the  lands  were  vcfted  in  the  fons  by  the  deed  of  the  State  ; 
and  yet  thofe  lands  never  would  have  been  liable  in  the  pofleflion  of  the  anceftor, 
the  heirs,  or  purchafers  under  either,  for  any  debt  due  from  Andreiv  Allen  wtkfs 
(I  judgment  had  been  obtained  againit  him  in  the  county  of  Northampton 
prc-vious  to  the  articles,  or  unlefs  the  lands  had  been  levied  upon  by  a  tejlatum 
from  fome  other  county.  True,  it  is,  that  the  debts  due  from  the  purchafers 
to  Mr.  Allen,  might  have  been  the  fubjeft  of  attadunent  in  the  hands  of  the 
debtors,  if  Mr.  Allen  had  owed  any  debts  and  had  at  any  time  been  a  debtor 
within  the  meaning  of  the  attachment  laws. 

It  on  the  other  hand,  fuch  deceafed  purchafer  under  the  articles  had  left  no 
perfonal  cllate  to  pay  his  debts,  and  his  heir  had  paid  the  balance  due  to  Mr. 
lilleii,  and  had  obtained  a  convey.mce  from  the  Cotnmonwealth,  that  land  would 

ftill 


[     29    ] 

rtill  be  liable  for  the  other  debts  of  the  anceftor,  to  the  amount  of  the  difference 
between  the  principal  and  interell  due  to  Mr.  Allen  at  the  time  of  the  anceftor's 
death,  snd  the  value  of  the  land. 

From  the  mode  of  acquiring  original  titles  to  lands  in  Pcnnfylvania,  and  from 
the  circumftance  of  there  being  no  Court  of  Chancery  in  that  ftate,  to  compel 
the  fpecific  performance  of  agreements,  poflTeflioii  and  the  equitable  title  has 
been  confidered  as  every  thing,  and  not  unfrequently,  under  an  equitable  title 
only,  pofTeflion  has  been  recovered  in  ejc£lment  againfl:  the  legal  title. 

Previous  to  the  revolution,  and  until  the  land  office  was  opened  fince  the 
Peace,  (except  for  city  and  town  lots,  and  farms  in  the  old  fettled  counties  of 
Philadelphia,  Bucks,  and  Cheller)  nine  tenths  of  the  lands  in  Pcnnfylvania 
were  held,  enjoyed,  and  improved  under  equitable  titles ; — a  warrant  to  furvey 
a  particular  traft,  and  a  furvey  identifying  and  defcribing  the  lands  intended  tc 
be  granted,  was  all  the  title  the  fettlers  had. 

On  fome  of  thefe  warrants  only  the  bare  office  fees  had  been  paid,  and  all  the 
pu'-^hafe  money  remained  dtje  ;  on  others  the  purchafe  money  had  been  paid  at 
the  time  of  taking  out  the  warrant,  and  nothing  remained  due,  unlefs  there 
were  fome  overplus  acres  in  the  furvey,  beyond  what  the  warrant  called  for ; 
and  in  fome  inftances,  where  a  fufficient  quantity  of  unappropriated  land  to 
fatisfy  the  warrant  did  not  remain  in  the  place  defcribed,  the  purchafe  money 
had  been  overpaid ;  and  yet  the  legal  title  remained  in  the  proprietary  in  all 
thefe  cafes ;  but  the  title  of  the  owner  was  not  rendered  lefs  equitable  becaufe  no 
part  or  but  p.  part  of  the  purchafe  money  was  paid,  nor  was  it  rendered  more  le- 
gal where  it  was  overpaid;  and  in  no  inftance  could  the  legal  title  be  demanded 
without  a  certificate  from  the  Receiver  General  that  the  arrears  were  paid. 

If  the  Commonwealth  had  attainted  the  proprietaries,  would  it  be  pretended 
that  thefe  lands  were  confifcated  becaufe  the  legal  title  remained  in  the  pro- 
prietaries, certainly  not,— »And  after  fuch  attainder  and  before  any  payment  of 
arrears,  any  equitable  holder  might  bring  his  aftion,  and  recover  his  damages, 
for  an  injury  to  the  freehold,  and  no  plea,  no  evidence  that  the  title  was  not  in 
the  plaintiiF  could  have  been  fuftained  or  admitted  in  any  Court  in  the  State  ; 
the  attainder ..  d  confifcation  would  have  effefted  nothing  but  what  the  proprie- 
taries had  a  right  to  receive,  to  wit,  the  arrears  of  debt  due  for  the  land. 

Had  an  aft  of  Affembly  of  Pcnnfylvania  been  paffed  conformably  to  the  re- 
commendation mentioned  in  the  Jlfth  article  of  the  Treaty  of  Peace,  Mr.  Allen 
would  have  been  reftored  to  the  pofleflion  of  his  lands  in  the  county  of  Berks 
which  were  confifcated  and  fold,  and  would  not  be  required  to  pay  any  thing  for 
them  ;  and  that,  whether  he  was  confidered  as  a  real  Britijh  fubjeSl,  or  as  a  per- 
fon  refident  in  diftrifts  in  pofleflion  of  His  Majefty's  arms,  not  having  borne 
arms  againft  the  United  States ; — -perfons  of  other  defcription  than  thefe,  (more 
obnoxious  than  the  former  and  not  included  in  the  firft  recommendation)  are  the 
lafl  mentioned  Perfons,  who  were  to  have  been  the  fubjedls  of  the  latter  recom- 
mendation, and  who  were  to  have  paid  on  being  reftored  :-^But  Mr.  Allen  would 
not  have  been  entitled  to  reftitution  of  the  lands  in  Northampton,  which  he 

had 


-^   -^L.pvwmifp 


[  30  ] 

t^i!  fold,  and  the  pofleffion  of  which  he  had  delivered  to  the  purchafers ;  be- 
ta ufe  he  had  no  claim  upon  them  for  any  thing  but  a  debt  the  recovery  of  whidl 
wn^  ffcurcd  by  the  fourth'  article  ;  and  the  inimenfely  valuable  improvements  on 
t'lc  lands,  and  their  increafcd  value,  were  tlic  cffeds  of  the  induftry,  labour,  and 
cvpcnfc  of  the  owners,  and  on  thefe  he  could  have  no  claim  further  than  for  hii 
iiucTcll  accrued  ;  and  he  was  able  at  the  peace  to  perfor  n  his  part  of  the  con- 
tract, which  was  nothing  more  than  for  the  delivery  of  the  parchment  evidence 
ot  the  legal  title,  and  a  conveyance  of  his  right  to  the  fame. — He  never  cove- 
nanted againft  the  irrefiftible  force  of  an  adl  c^i  attainder,  the  narrow conftruc- 
tion  of  a  Treaty  of  Peace,  or  that  the  lands  flioald  not  be  fwallowed  up  by 
an  earthquake. 

The  General  Agent  refpeftfuUy  trufts,  that  in  other  arguments  it  has  been 
Jhewn,  that  all  lawful  impediments  to  t!.e  recovery  of  all  ?o/»fl _/?</«  debts  before 
contraiSled,  on  either  fide,  were  intended  to  be  removed  by  the  Treaty  of 
Peace,  and  of  courfc  that  if  any  confequence  whatever  of  an  aft  of  attainder  or 
confifcation  would  have  barred  a  recovery,  fuch  aft,  quoad  hoc,  was  nullified. 

It  is  infiAed  that  no  admiflion,  limitation  or  condition  in  the  fifth  article, 
fanftions  any  effeft  of  the  confifcation  cf  eftates,  rights  and  properties  therein 
mentioned,  when  that  effeft  would  impede  the  recovery  of  a  bona  fide  debt,  and 
that  the  contrary  concluficn  is  manifeft  from  the  Aipulation  in  the  dofe  of  the 
article. 

It  has  it  is  hoped  been  clearly  fliewn,  that  by  the  law  of  England,  and  by 
the  law  of  Pennfylvania,  Mr.  Allen  is  a  Britiih  'iibjcft,  within  the  true  intent 
and  meaning  of  both  treaties. 

It  is  indifputable,  that  he  is  the  creditor  of  debts  bona  fide  contrafted  before 
the  peace,  which  have  never  been  paid  to  him,  or  to  any  perfon  authorifed  by 
hi;ji,       '  fofar  as  relates  to  him,  they  are  ftill  juftly  due  and  owing. 

.10  diftrimination  bet     en  one  bona  fide  debt  and  another  ;    or  be- 
•  v'Jul  impediment  an^      lother ;    A  law  preventing  a  creditor  from 
t  n   aft,  merely  and  ftriftly  legal,    and  not  fubftantially  material, 

."1    .  ..  cing  at  the  fame  time  a  recovery  of  the  debts,  becauft  that  aft  is  not 

y. : !  (icd,  is  as  much  a  lawful  impediment  as  a  law  prohibiting  the  commence- 
.11  ...c  and  profecution  of  fuits ;  and  the  objeftion  ftarted  in  this  particular  cafe  is 
neither  more  or  lefs  than  this,  "  that  a  creditor  (ball  not  recover  debts  due  on 
"  bonds,  becaufe  he  had  retained  a  legal  title  to  lands  as  a  fecurity  for  the  pay- 
"  ments ;"  or  in  other  words,  that  while  the  confifcation  of  all  debts  was  annul- 
led, and  their  recovery  fccurcd  by  one  article,  the  confifcation  of  the  fecurity 
is  admitted  and  fanftioned  by  another  article  of  the  fame  Treaty: — But  if  the 
recovery  has  thus  been  hitherto  prevented  becaufe  the  fecurity  has  been  thus 
impaired,  does  it  not  follow,  that  compenfation  is  now  the  right  of  the  creditor 
unJor  n  hitcr  Treaty,  and  that  the  profecution  of  hopelefs  fuits  is  not  his  duty. 

Itis  n  ot  pretended,  that  any  other  caufc  would  have  equally  operated  to 
Jiave  produced  the  lofs  fuftaineJ   bv    the  Claimant,  if  the  faid  impediments 

had 


r  3«  ] 

Bad  not  exifted  ;  and  it  is  apparent,  that  impediments  created  by  law  and 
not  by  the  parties,  hitherto  have  prevented,  and  yet  do  prevent,  r  recovery. 
The  debtors,  or  their  reprefentatives,  are  able  to  pay ;  and  the  traft  of  land 
of  which  the  legal  title  was  referved  to  fecure  the  faid  debts,  is  one  of  the  fi- 
neft,  beft  improved,  and  moft  valuable  in  the  country.  Equity  and  juftice, 
therefore,  and  a  true  conftruftion  of  the  Treaties,  entitle  the  Claimant  to 
compenfation  ;  he  is  a  Britilh  fubjeft ;  he  never  was  a  citizen  of  Pennfylvania  ; 
he  adhered  to  his  native  allegiance  ;  he  had  an  unreflrainabic  right  fo  to  do  ; 
he  committed  no  treafon  againll  the  State  of  Pennfylvania  in  fo  doing  ;  and 
he  has,  neverthelefs,  been  punifhed  by  the  confifcation  of  his  debts,  as  if  htr 
had  been  a  fubjeft  of  the  State,  and  guilty  of  treafon  againft  it. 


'^.  ifi 


W.  MOORE  SMITH. 


ro  the  COMMISSIONERS  for  carrying  into  EffeSi  the  Sixth 
Article  of  the  Treaty  of  Amity,  Commerce,  and  Navigation,  con- 
cluded between  His  Britannic  Majefty  and  the  United  States  of 
America,  on  the  i^tb  November,  1794. 


OBSERVATIONS 

On  the  part  of  the    United  States^ 
On  the  REPLY  of  Andrew  Allen,  Ef quire. 

THE  Agent  for  the  United  States  in  his  Obfervations  on  the  Reply  in  this 
cafe,  will  be  the  more  concife,  as  many  matters  contained  in  the  reply  do  not 
appear  to  him  to  require  his  notice. 

Let  it  be  recollefted,    that  this  claim  has  been  oppofed  on  two  grounds. 

Firjl.  That  the  Claimant  having  been  attainted  of  high  treafon  by  the  legif- 
lative  aft  of  an  independent  State,  and  his  eftates  and  debts  forfeited  for  that 
crime,  the  Treaty  of  Peace  did  not  annul  the  forfeiture  and  reftore  to  the  Claim- 
ant a  right  to  his  forfeited  debts, 

Seconitlj, 


I 


'iSKSSB-''* 


[     3=     I 

Si-iiiMy.  That  if  the  I'lcaty  of  Peace  did  comprcliend  the  Claimant,  reftor- 
iiig  to  him  a  right  to  recover  the  debts  that  had  been  forfeited  for  treafon,  then 
thole  debts  being  an  equitable  charge  on  the  lands  forfeited  to  the  State,  are 
within  the  provifion  of  the  laft  claufe  of  the  Jifih  article  of  that  Treaty,  and 
ihofe  lands  being  always  liable  and  now  adequate  to  fatisfy  the  fame,  (hould  be 
purdied  in  the  ordinary  courfe  cf  juftice,  on  the  equity  fide  of  the  Circuit  Court 
of  the  United  States. 

Firil  ground  of  defence. 

The  Claimant  has  ftatcd  in  his  reply,  that  •'  it  is  not  to  he  difputed  or  de- 
"  nicd  in  this  cafe,  that  the  Legiflature  of  Pennfylvania  proceeded  againft  the 
"  Claimant  as  an  inhabitant  or  fubjefi  of  Pennjjl'vania,  and  conlifcated  his 
"  whole  ellate  real  and  perfonal,  debts  included  ;"  and  the  legiflative  aft 
exprefll-s,  that  the  attainder  and  forfeiture  was  inflifted  for  the  crime  of  high 
treafon. 

In  the  cafe  of  Doftor  Inglis,  the  Board  on  the  ztft  May  1798,  refolved,  "  that 
•'  the  Claimant's  charafter  of  Briti(h  fubjeftwas  not  aftedled  or  impaired  by  the  aft 
'  of  attainder  and  confifcation  pafled  by  the  State  of  New  York,  on  the  21ft  of 
"  Oftober  1779,  attainting  him,  ihs^arXof  Dunmore,  Governor  7V^'o»,  Sir  Henry 
"  Clinton,  and  many  other  Britifh  fubjefts,  who  are  therein  defcribed,  not  at  Jul - 
"  je{is  of  the  State,  but  as  perfons  holding  or  claiming  property  'u.'ithin  the  State,  and 
"  forfeiting  and  confifcating  their  whole  eftates  real  and  pedonal,  for  their  adher- 
"  ence  to  His  Britannic  Majcfty,  but  that  on  the  contrary,  the  faid  aft  of  attain- 
"  der,  and  the  defcription  of  loyalift  or  refugee,  applied  to  the  Claimant  on  the 
"  part  of  the  United  States,  in  confequence  of  his  faid  adherence,  are  conclufive 
•'  evidence  that  he  ftill  maintained  his  original  allegiance,  that  therefore  he  is  enti- 
"  tied  to  claim  before  this  Board  under  the  yo«r//&  article  of  the  Definitive  Treaty 
"  of  Peace,  and  thejixth  article  of  the  Treaty  of  Amity,  between  his  faid  Majefty 
"  and  the  United  States."  (Printed  copy  of  the  cafe  oi  Inglis  page  19).  This 
refolution  has  been  exaftly  recited,  becaufe  it  may  be  underftood  to  have  omitted 
the  cafe  of  the  Claimant,  who"'_in  the  aft  of  attainder  and  forfeiture  is  exprefsly 
defcribed  as  a  fubjeft  of  the  State  of  Pennfylvania,  and  punilhed  as  fuch  by  a 
forfeiture  of  his  eftates  and  debts.  Indeed  the  expreflions  in  this  refolution  feem  to 
imply,  that  if  Doftor  Inglis  had  been  attainted  as  a  fubjelt  of  Netu  York,  and 
his  debts  confifcated  for  a  crime  committed  by  him  as  a  fuhjeSl,  the  Board  would 
have  difmifl'ed  his  claim.  The  diftinftion  fo  explicitly  taken  by  the  Board,  be- 
tween attainting  and  punilhing  a  man  as  a  fubjeB,  and  attainting  and  punifh- 
ing  him  "  as  a  perfon  holding  or  claiming  property  ivithin  the  State,"  muft  have 
been  meant  for  fome  ufe.  At  all  events,  this  refolution  cannot  be  confidered  as 
deciding  that  the  fourth  article  of  the  Treaty  of  Peace  fet  afide  legiflative  afts 
of  attainder  and  forfeiture,  pafled  againft  individuals  defcribed  and  hr'  \cn  as 
fubjefts  L  he  State,  and  punifliing  them  for  their  criminal  conduft.  i  here  is 
certainly  a  difference  between  a  confifcation  of  an  enemy's  property  by  the  right 
of  war,  and  a  forfeiture  of  a  fubjeft's  property  by  law  for  criminal  conduft. 

That  the  State  of  Pennfylvania  in  paffing  the  aft  of  attainder  and  forfeiture 
againft  Andrew  Alien  the  Claimant,  defcribed  and  confidered  him  as  a  fubjtS, 

19 


.-a^Jfci. 


[     33     ] 


13  apparent  from  the  words  of  the  afl.  If  he  had  not  been  a  fubjcdl  of  Ponn- 
fylvania,  he  could  not  have  committed  the  crime  of  trcafon,  of  which  he  was  by 
legiflativc  aft  attainted.  That  legiflative  aft  is  itfelf  evidence,  the  belt  and 
highed  evidence  of  his  being  a  fubjcft  of  the  State.  Such  faith  is  due  to  the 
aft  of  a  Legiflaturc  of  an  independent  State,  that  other  teftimony  of  the 
fafts  contained  in  it,  is  not  to  be  required.  On  the  aft  of  attainder  and  for- 
feiture therefore,  the  Agent  for  the  United  States  might  reft  as  fufficient  proof, 
that  the  Claimant  was  a  fubjeft  of  Pennfylvania.  Aware  of  this,  the  General 
Agent  for  Claimants  has  advanced  the  extraordinary  pofition,  "  that  the  Treaty 
"  of  Peace  is  the  only  point  of  time  from  which  agreeably  to  the  Britilh  con- 
•'  ftitution  and  laws,  the  United  States  ceafed  to  be  a  part  of  the  Britiih  empire." 
According  to  this  doftrine,  Pennfylvania  was  not  an  independent  State  till  the 
peace,  for  ihe  could  not  be  an  independent  State  while  flie  remained  a  part  of 
the  Britifh  empire.  According  to  this  doftrine  her  legillative  afts  prior  to  the 
Peace,  are  not  to  be  regarded  as  the  afts  of  an  independent  State. 

This  pofition  being  important  to  the  juft  dccifion  of  this  claim  Ihall  be 
examined. 

When  the  United  States  became  independent  and  took  their  place  among 
the  nations  of  the  earth,  is  a  matter  not  to  be  determined  "  agreeably  to  the 
'<  Britilh  conllitution  and  laws,"  but  agreeably  to  the  laws  of  nature  and  of  nations. 

In  faft  they  were  independent  fo  early  as  177;,  and  on  the  ever  glorious  and 
memorable /9///7A  of  July,  1776,  they  folemnly  and  formally  declared  to  the 
world  they  were  independent,  and  from  that  period,  have  maintained  their 
independence  with  honour  and  profperity.  Prior  to  the  Treaty  of  Peace  they 
made  Treaties  of  Alliance,  Commerce,  and  Navigation,  and  were  thus  pub- 
licly recognized  by  Foreign  Powers  as  an  independent  nation.  They  carried 
on  war,  they  made  laws  ror  their  own  government,  and  did  every  other  aft  of 
a  fovereign  power.  The  formal  acknowledgment  by  His  Britannic  Majefty 
added  nothing  to  their  real  indeptndtnce,  and  if  the  Treaty  of  Peace  had  never 
been  made,  the  United  States  would  have  aftually  continued  an  independent 
nation,  though  at  war  with  Great  Britain  to  this  moment. 

What  is  it  the  United  States  were  incompetent  to  do  as  a  fovereign  power, 
between  i\it  fourth  July  1776,  and  the  third  of  September  1783,  which  they 
can  now  do  ? 

•'  Every  nation  that  governs  itfelf  under  what  form  foever  without  any  de- 

"  pendence  on  a  foreign  power  is  a  fovereign  State,  its  rights  are  naturally  the 

•*  fame  as  thofc  of  any  other  State.     Such  are  moral  perfons  who  live  together 

"  in  a  natural  fociety,  under  the  law  of  nations.     To  give  a  nation  a  right  to 

"  make  an  immediate  figure  in  this  grand  fociety,  it  i^  fufficient  if  it  be  really 

^'  fovereign  and  independent,  that  is,  it  muft  govern  itfelf  by  its  own  autho- 

"  rity."     Vattel  B.  i.  Sec.  4. 

"  When  a  nation  becomes  divided  into  two  parties  abfolutely  independent. 
*«  and  no  longer  acknowledging  a  common  fuperior,  the  State  is  diflblved,  and 

E 


! 


if 


[     34     ] 


Hi 


•'   ihc  war  lutwixt  the  two  parties  in  every  rcfpcft  is  tlie  fame  with   that  of  a 
"  public  war  between  two  diJlcrent  nations."     Cttticl,  II.  i-  Sec.   295. 

Applying  thefe  paflages  to  the  fituation  of  the  Britifti  empire  when  the  y\me- 
ricaii  cdloiiies  feparated  from  Great  Britain,  declaring  their  independe*  cc,  and 
maintaining  it  by  the  i'vvord,  they  prove  the  feveral  United  States  to  have  been  in- 
depcuJcnt  as  early  as  the/'oKr/Aof  July  1776.  That  day  is  the  anniverfary  of  their 
fovcrjignty,  and  as  fuch  celebrated  in  every  part  of  the  country.  In  the  year 
1776,  the  States  generally  formed  their  conllitutions  of  government,  fome  of 
unich  remain  to  this  niumcnt  unaltered  ;  and  are  confidered  as  the  palladium 
of  their  rights,  the  fourcc  of  all  lawful  authority. 

Even  in  Weftminftcr  Hall  the  Judges  have  frequently  declared,  that  the  afts 
of  the  Legiilaturcs  of  the  fevej-al  States,  which  were  pafled  during  the  late 
war,  cojld  Ijc  regarded  by  them   in  no  other  light   than  adls  of  independent 

States. 

The  Agent  for  the  United  States  therefore  denies,  that  "  the  Treaty  of  Peace- 
"  i)  the  only  point  of  time  from  whicii  agreeably  to  the  Hriti(h  conftitution  and 
•'  laws  the  United  States  ceafed  to  be  a  part  of  the  IJritifli  empire,"  and  he 
denies  alio,  that  the  commencement  of  their  independence  is  to  be  afcertained 
by  the  "  Uriti(h  conftitution  and  laws,"  but  infills  that  it  is  to  be  afcertained 
by  the  laws  of  nature  and  cf  nations. 

Siippofing  it  cftabliftied  to  the  fatisfaftion  of  the  Board,  that  Pennfylvania 
became  a  Ibvcreign,  independent  State  on  the/oz/r/A  of  July  1776,  and  fo  conti- 
nued ever  fince,  the  legiilative  aft  pafled  on  the  6th  March  1778,  which  de- 
icribed  and  held  Andrcii.'  .'Jllen  by  name  as  a  fubjeft,  and  for  his  treafon  attaint- 
ed him  and  forfeited  all  liis  eftatcs  including  his  debts,  being  the  ad  of  the 
li;preme  power  of  a  fovereign  State,  is  to  be  regarded  at  all  times,  while  un- 
reptafed,  as  incontioveitiblc  evideiKe  of  the  faSs,  that  he  was  a  fubjeft  to  the 
State,  and  had  been  guilty  cf  treafon,  for  which  his  eftates  and  debts  were  for- 
feited. Though  it  can  be  proved,  that  the  Claimant  having  remained  in 
I'l  unlylvania  more  than  eighteen  months  after  the  beginning  of  hoftilities,  and 
more  than  fix  montiis  after  the  declaration  of  independence,  yielding  obedience 
to  tiie  ruling  pdwers  of  the  State  and  enjoying  its  proteflion,  thereby  and  by 
other  aiXi  made  his  cleftion  to  be  a  fubjed  to  the  State  of  Pennfylvania,  yet  this 
kerns  to  be  fuperfeded  by  the  legiflative  ad  of  attainder  and  forfeiture.  Ac- 
cordins;  to  Englilh  juriils  an  ad  of  Parliament  iseftccmed  the  higheft  evidence, 
and  its  verit\  fo  abfolute,  that  none  can  queftion  any  thing  contained  in  it. 
So  luo  in  the  United  States,  is  an  ad  of  the  Legiflaturc  of  a  State  efteemed. 

The  contcft  in  the  prcfent  cafe  is  not  between  Great  Britain  and  the  United 
States  concerning  the  efled  of  the  aft  of  attainder  and  forfeiture,  but  between 
A/idn-.v  Allen  and  the  United  States.  Is  it  competent  for  him  to  deny  or  con- 
trovert any  faft  llated  in  the  aft  of  attainder.''  Is  it  competent  for  him  to  fay, 
in  contradiclion  to  that  Legiflative  aft,  that  he  was  never  a  fubjeft  to  Pennfyl- 
\ania,  and  never  had  committed  treafon  }  If  this  legiflative  aft  has  never 
btcn  repealed,  is  the  Board  authorifed  by  any  principle  or  precedent  toqueflion 

its- 


C    3J     ] 

its  verky,  or  to  decide  In  the  face  of  it,  that  Andreifj  Alien  was  not  a  fubjcdl  of 
i'ennfylvania?  It  may  here  be  remarked,  that  an  oath  or  folemn  afnrmation, 
was  not  indifpenlable  to  make  an  inhabitant  a  fubjedl  to  the  State  of  Pennfyiva> 
nia,  though  neceflary  to  qualify  for  ofHce:  However  juft  the  dofliinc  may  be, 
that  the  allegiance  of  Britiih  fubjcfts  is  unalienable  without  the  confent  of  their 
Sovereign,  when  it  only  concerns  queftions  between  them  and  their  King,  yet 
a  Britiih  fubjeft  having  made  himfelf  a  member  of  another  State,  may  commit 
ircafon  againft  that^  State  and  be  punilhed  by  it  for  his  crime.  For  example,  a 
Britifh  fubjcdl  who  has  emigrated  to  the  United  States  fince  the  Peace,  and 
has  become  a  citizen  thereof,  may  commit  treafon  againft  the  United  States  in 
the  confideration  of  their  municipal  laws. 

Though  Andreiv  Allen  after  being  a  fubjeft  to  Pcnnfylvania  joined  tl;c  Britifli 
forces  in  December,  1776,  and  rcturr."-!  to  his  natural  allegiance  ;  this  did  noi 
diffolve  the  right  of  Pennfylvania  to  hoid  him  as  its  fubjedl,  and  as  its  fubjcdl 
to*  punilh  him.  Having  done  this  by  a  legidative  aft,  it  onlv  remains  to  be 
confidered,  whether  that  aft  was  repealed  as  to  debts  by  the  fourth  article  of 
the  Treaty  of  Peace.  The  Agent  for  the  United  States  coitcnds  that  it  was 
not,  and  that  the  debts  forfeited  for  treafon  during  the  war  were  not  embraced 
by  that  a.ticle,  becaufe  Andrei\j  Allen,  and  all  others  in  tne  like  predicamcnr, 
were  civily  dead  as  to  the  United  States,  and  were  not  creditors  when  the  Trea- 
ty of  Peace  was  concluded  of  the  debts  that  had  been  forfeited.  The  Stipulati- 
on "  that  creditors  on  either  fide  (hall  meet  with  no  lawful  impediment  to  the  rc- 
"  covery  of  the  full  value  in  fterling  money  of  all  bona  fide  debts  heretofore 
"  contrafted,"  does  not  include  perfons  who  as  fubjefts  had  been  deprived  of 
their  eftates  and  debts  for  their  criminal  conduft.  Andreiv  Allen  having  joined 
the  American  fide,  .js  is  proved  by  the  higheft  evidence,  the  legiflative  aft  of 
Pennfylvania,  and  ha.'ing  dfferted  it  and  thereby  incurred  a  forfeiture  of  all  his 
rights,  is  in  no  point  of  view  to  be  confidered  as  a  creditor  on  the  Britifti  fide. 

The  Agent  for  the  Claimant  has  introduced  the  cafe  of  the  Commonwealth  of 
Pennfylvania  againft  Chapman,  adjudged  in  the  Supreme  Court  of  Pennfylva- 
nia, as  a  decifion  among  other  points,  that  Andrew  Allen  was  a  Britifli  fubjeft ; 
being  reported  at  large  in  firfi  Dallas,  page  53,3  reference  to  it  will  be  the  beft 
anfwer  to  what  is  faid  about  its  purport.  It  is  remarkable  that  Chapman  was 
not  by  hgifiati-ve  a£l  declared  guilty  of  treafon.  Andrew  Allen  was  lo  declared 
guilty  of  treafon  by  the  aft  of  attainder.  The  two  cafes  therefore  are  eflential- 
ly  different.  Attainders  in  Pennfylvania  are  faid  by  the  Agent  for  the  Claim- 
ant to  be  of  three  kinds :  Firfl,  by  being  particularly  named  in  the  aft,  and 
this  was  the  cafe  of  Andrew  Allen.  Second,  by  being  called  upon  by  prcclama- 
tion  to  furrender  and  abide  a  trial  and  neglefting  to  comply.  This  was  the 
clafs  in  which  Chapman  was  placed.  While  the  courts  affirmed  the  doftrine  of 
the  independence  of  Pennfylvania  in  1776,  and  that  treafon  might  have  been 
committed  againft  the  State  at  that  period,  they  in  fafor:  I'ii^r  tcck  diftinfti- 
ons  upon  the  afts  of  the  I.egiflature  which  operated  in  favor  of  the  prifoner,  and 
Chapman  was  acquitted  on  the  ground  of  not  being  m-ithin  the  legifiati-ve  a£ls,  arid 
of  his  being  rather  a  prifoner  of  war. 

To  conclude,  the  firft  ground  of  defence,  if  the  legiilative  aft  of  attainder 


■\)\ 


\ 


•■?-4i  ^^rr 


*«»'iW»a*P-'*M».-i--»-:- 


il       V 


I  1<'  1 

mii  f'rleicurc  paffcd  by  rennlylvania  on  the  6th  of  March  1778,  istobecon- 
iidercd  as  an  ad\  of  a  lovcreigu  independent  State,  it  is  conclufive  proof  that 
.'ftiJiciv  J/hit  \</^i  once  a  fubjeil  of  Pennfylvania,  and  had  forfeited  his  eftate 
including  his  debt,  prior  to  the  Treaty  of  Peace,  for  his  criminal  conduct  as  a 
liibjefk.  If  as  a  fubjcft  he  was  attainted,  and  puniflied  by  a  lofs  of  his  debts, 
the  Treaty  of  I'cacc  did  not  annul  the  legiflative  aft  of  forfeiture,  and  reftorc 
to  him  a  right  to  recover  his  forfeited  debts.  If  the  Treaty  of  Peace  did  not 
reftorc  to  him  a  right  to  recover  fuch  forfeited  debts,  there  has  been  no  lofs  pro- 
ceeding from  a  violation  of  it,  for  which  he  is  entitled  to  claim  before  the  Board 
nndcr  the  Treaty  of  Amity. 

Second  ground  of  defence. 

But  fuppofing  the  Treaty  of  Peace  was  meant  to  annul  this,  and  every  fuch 
other  aft  of  attainder  and  forfeiture  (which  however  is  by  no  means  admitted 
by  the  Agent  for  the  United  States)  then  the  Claimant  ought  to  recur  to  judi- 
cial proceedings  for  fatisfaftion  out  of  the  lands  or  from  the  debtors.  Upon 
this  fubjeft  very  little  will  be  added  to  what  has  been  ftaied  in  the  anfwer. 

The  Agent  for  the  United  States  believes  it  has  never  been  determined  in  the 
Supreme  Court  of  the  United  States,  whether  a  perfon  held  as  a  fubje£l  to  a 
State  in  the  early  part  of  the  war,  and  afterward-  openly  joining  the  forces  of 
His  Britannic  Majeily,  and  thereafter  attainted  by  legiflative  aft  for  treafon, 
.-ind  his  eflates  and  liebts  confifcated,  is,  or  is  not,  of  ability  to  profecute  and 
recover  fuch  debts.  For  the  "eafons  that  have  been  urged,  it  is  probable  it 
would  be  determined  negatwely  in  the  principle  that  the  fourth  article  of  the 
Treaty  of  Peace  did  not  embrace  fuch  a  cafe,  and  that  fuch  an  aft  of  attainder 
and  forfeiture  was  unrepealed  by  it. 

Neverlhelefs,  if  it  could  be  proved  .0  their  falisfaftion  that  the  Treaty  did 
repeal  fuch  a  legiflative  aft,  no  fufficient  reafon  occurs  why  they  would  not  alio  de- 
termine, that  a  fuit  fliould  be  judicially  maintained  for  the  recovery  of  fuch  debts. 

On  the  part  of  the  Claimant,  great  pains  have  been  taken  to  Ihew,  that  he 
could  not  recover  in  the  Courts  of  the  United  States,  the  debts  which  are  the 
fubjcft  of  the  prefent  claim.  If  the  adjudged  cafes  which  are  mentioned  had 
been  reprefented  with  accuracy,  the  Agent  for  the  United  States  would  not 
trouble  the  Board  with  any  obfervations  on  them.  Moft  of  them  have  been 
frequently  fubmitted  to  the  Board,  and  the  Agent  for  the  United  States  finds 
with  regret,  that  they  are  not  reprefented  with  more  correftnefs  now,  than  they 
were  at  firft,  and  though  moft  of  them  have  no  relation  to  the  points  controverted 
in  this  claim,  they  will  for  the  fake  of  correftnefs  be  fhortly  noticed. 

Moore  v.  Patch,  in  Maflachufetts. 

The  Agent  for  the  Cla'mants  has  afferted,  "  that  this  fuit  was  brought  for 
•'  the  fole  purpofe  of  trying  in  the  Supreme  Court  of  the  State,  the  right  of 
•    James  Putnam,  Efquire,  to  recover  a  debt  contrafted  before  the  revolution, 

and 


[     37     1 

"  and  due  by  a  citizen  of  Maflachufeits,"  and  after  prefrnting  to  view  a  pan 
only  uf  the  cafe  agreed  by  the  partiei,  adds,  "although  from  the  loofe  mode 
"  ofpraftice  in  the  State,  the  Treaty  i>/ Ptact  ii  net  brought  into  'vinu  on  the 
"  reitrd,  yet  it  was  in  fa  A  the  fole  ground  on  which  the  arguments  for  the 
"  plaintiffs  proceeded,  &c." 

In  th."  argument  in  DoAor  Inglii's  claim  this  cafe  is  fully  ftated  ;  [Pngr  41  ef 
the  printed  copy)  to  which  ftatement  the  Agent  prays  leave  to  refer,  liy  refer- 
ence to  it  the  Board  will  perceive,  that  the  real  quellinn  tried  and  meant  to  be 
tried  was,  whether  an  alien  could  hold  lands  in  Maffachufetts,  and  it  was  de- 
termined he  could  not.  With  this  view  of  the  cafe  of  Moore  and  Pateh  it  is 
wholly  inapplicable  to  the  fubjefl  now  under  confideration. 

Murray  vs.  MareaUy  in  MaflTachufetts. 

The  record  of  this  cafe  is  added  to  the  printed  cafe  of  Doflcr  Inglis.  The 
pleadings  did  not  bring  the  Treaty  of  Peace  before  the  Court,  fo  that  the  judg- 
ment was  merely  on  the  queftion,  whether  a  Icgiflative  aft  of  confifcation  veiled 
in  the  State,  the  ellates  and  debts  of  an  individual  or  not.  It  was  decided  in 
the  affirmative,  and  every  body  muft  agre«  it  was  rightly  decided.  This  ap- 
pears to  be  the  true  ftatc  of  the  cafe  {^Printed  copy  of  Inglis^s  cafe,  pages  98,  99.) 
It  confequently  has  no  relation  to  the  cafe  of  a  perfon  attainted  as  a  traitor  wliufe 
debts  were  forfeited  on  that  account. 

Indeed  obferving  on  thefe  two  cafes  the  Agent  for  Claimants  fays,  both  thefe 
plaintiffs  were  "  officers  of  the  crown  before  the  revolution,  both  left  Maffachu- 
"  fetts  before  the  declaration  of  independence,  and  neither  of  them  had  been  even 
"  tacitly  a  citizen  ef  Majfachtfetts  or  any  other  State  or  had  even  been  within  the 
"  limits  of  the  State,  or  had  been  guilty  of  traiterous  confpiracies  againlt  that 
"  State,  any  more  than  Sir  Henry  Clinton,  Lord  Dunmore,  and  Governor  Tryon, 
"  had  agaii..i  ihe  Slate  of  New  York,  &c."  According  to  his  own  reprefentati- 
on  then  there  is  no  fimilarity  between  either  of  thefe  cafes  and  that  of  jindrew  Men. 

The  opinions  of  the  Attorney  General  of  Maflachufetts,  as  cited  in  the 
Reply,  are  believed  to  be  very  correA,  but  they  too  have  no  relation  to  the 
Treaty  of  Peace. 

What  has  been  remarked  by  the  Agent'for  the  Claimant,  refpe^ing  the  11- 

3uidation  J.  S.  Hohart,  E.'quire,  one  of  the  Judges  of  New  York,  of  the  debt 
ue  by  N.  Barlow  to  Bilhop  Inglis  (hall  pafs  without  comment. 

Hamilton  vs.  Eaton., 

The  plaintiffs  in  this  cafe  were  allowed  by  a  law  of  North  Carolina,  together 
with  others  fimilarly  circumAanced,  the  option  of  taking  an  oath  of  allegiance 
to  the  State,  or  of  departing  it.  They  cbofe  the  latter  and  were  never  regarded 
as  fubjeds  to  the  State.  Their  confifcated  debts  they  have  been  adjudged  to  be 
capable  of  recovering  of  the  debtors.— "It  is  not  to  be  denied  that  the  Chief 

Jufticc 


f« 


V  1^ 


i 


I      33      ] 

jullicc  El!j'v.(.rtl<,  in  ilclivcrinp  his  fentiments  on  this  cafe,  docs  ftrongly  Imp!/, 
if  the  plaiiitiiFa  had  been  flaimtd  and  holden  as  citizens,  and  for  their  crime 
Jiad  been  dcjirived  of  their  debts,  t.iat  they  could  not  have  recovered  them  under 
ihe  Treaty  of  Peace.  This  opinion  the  Agent  for  the  United  States  confiders, 
:is  a  very  rclpcdablc  fupport  of  the  firlt  ground  of  defence  taken  in  this  claim. 
Upon  all  occafiuns  the  Chief  Juftice  has  been  ready  to  allow  tiie  fulleft  force  of 
the  Treaty  of  Peace  upon  c:.fe3  within  it,  and  if  debts  forfeited  for  treafon  are 
not  in  his  opinion  recoverable  in  the  Federal  Courts.,  -t  can  only  be  becaufe  he 
ti)inks  they  arc  not  within  the  operation  of  the  Treaty,  for  if  they  were,  it  is 
difficult  to  aflign  a  reafcn  why  :hey  fliould  not  be  recoverable  at  law,  as  well  as 
debts  confilcated  by  right  of  war. 


ilamilton  vs.  MoorCy   in  Georgia. 

The  Agent  for  the  United  States  having  underftood  in  the  month  of  March 
iill,  that  a  cafe  had  been  decided  in  the  Circuit  Court  of  Georgia,  in  which 
judge  Filter foH  prefided,  without  knowing  the  name  of  the  defendant,  or  the 
purport  of  the  decifion;  wrote  to  him  for  informauon  refpefting  it.  He  was 
favoured  with  two  letter',  dated  16th  of  March  and  Z7th  May,  which  follow. 


COPY. 

Nei'j  Brunfiuiik,   iGtk  March,   1799. 

Sir, 

I  RECEIVED  your  letter  of  the  eighth  of  this  month  a  few  days 
.igo.  The  aftion  in  Georgia  to  wliich  you  allude,  was  iniHtuted  in  the  names 
of  Archibald  and  John  Hamibon  againll  Dickinfon  and  M'lver.  My  notes  on 
the  circuit  are  (hort.  Sometimes  I  take  none.  At  the  moment  I  trull  much 
to  memu.v.  As  far  as  notes  and  memory  ferve,  the  plaintiffs  declared  on  a 
bond  of  d.itcihe  loth  of  Auguft,  1776.  The  defendant  pleaded  that  f*-?  plain- 
tiffs weri  on  the  confilcation  ad  of  North  Carolina,  and  that  they  made  pay- 
ment to  the  commiflioners,  &c.  The  plea  alfo  ftated,  that  the  plaintiffs  were 
inhabitants  of  North  Carolina  on  the  4th  July  1776,  aid  continued  fo  till  Sep- 
tember 1777.  To  thi-i  plei  the  plaintiffs  demurred.  It  is  prooable  that  the 
rights  and  true  fituation  ,f  the  plaintiffs  were  not  fet  forth  in  th'i  pleadings,  at 
lead  fuch  was  the  impreflion  on  my  mind  «t  the  time  ;  for  in  confequence  there- 
of, the  Court  'n  the  courie  of  the  argument  intimated  to  the  plaintiffs  counfel, 
the  propriety  of  amending,  in  order  that  the  merits  might  come  fairly  into  view. 
No  nutic"  was  taken  of  the  intimation.  The  argamer.i.  proceeded,  and  the 
decifion  was  againft  the  plaintif}"s.  The  caufe  in  my  apprchenfion  uas  fo  clear 
that  I  took  no  tin.e  to  confider  but  inftantly  decided.  I  think  that  a  writ  of  error 
was  brought  but  not  purfucd.  Peiliaps  by  having  recourfe  to  the  clerk's 
effice  of  the  Supreme  Court  )ou  will  find  the  proceedings  returned  with  the  writ 
of  error. 

I  am  !>ir  your  obeMent  Servant, 


Mr.  Re. Ml, 


\VlLI.\M    PATTt."ISON. 


Sir, 


[     39     ] 

Nrw  Brun/wici,  irth  May,   1799. 

I   FIND  on  my  notes  an    aflion  of  the  following  defcription, 


Thomas  Mutter  of  North  Carolina, ") 
Archibald  Hamilton  of  Great  Bri- 
tain, and  John  Hamilton  of  Vir 
ginia, 


againft 
William  Moore 


>In  debt. 


The  declaration  ftates,  that  A.  and  J.  Kamrlton,  are  fubjefts  of  the  King  of 
Great  Britain.  The  defendant  pletued,  that  the  plaintiffs  are  on  the  confifca- 
tion  aft  of  North  Carolina,  and  payment  to  the  commiflioners.  The  plea  ftates, 
that  the  faid  A.  and  J.  Hamilton  were  inhabitants  of  North  Carolina  on  the  4th 
July  1776,  and  continued  to  be  fo  till  September  1777.  To  this  plea  the  plaintiff:! 
demurred.  I  well  remember  that  it  was  u'ged  by  Mr.  Noel,  one  of  the  coun- 
fclon  the  part  of  the  defendant,  that  all  inhabitants  became  citizens  by  the  de- 
claration of  independence  ;  on  this  point  the  Court  gave  no  opinion,  it  was  not 
neceffary,  the  cafe  did  not  require  it.  As  it  was  admitted  by  the  pleadings 
that  A.  and  J.  Hamiltor.  were  inhabitants  of  North  Carolina  on  the  4th. July 
1776,  and  continued  to  be  fo  ti!l  September  1777,  a  period  m.ore  than  lufficient 
foi  them  to  mai<e  their  eleflion  agreeably  to  the  law  of  nations,  I  confidered 
them  as  citizens  of  North  Carolina,  and  not  as  fubjefts  of  the  King  of  Great 
Britain.  So  the  law  appeared  to  me  as  arifing  on  the  fr.ifls  detailed  in  the 
pleadings.  In  my  judicial  capacity  T  was  obliged  to  take  the  caYe  from  the 
declaration,  plea,  and  demurrer,  but  I  intimated  more  than  once  th*:  propriety 
of  moving  to  amend  the  proceedings.  It  was  not  done.  The  decifion  parted 
againft  the  plantiffs.  I  cannot  undertake  to  fay  of  what  opinion  the  Court 
would  have  been,  if  the  plaintiffs  had  replied, — that  they  were  fubjefts  of  His 
Britannic  Majefty,  and  alfo  the  Treaty  of  Peace.  On  my  fame  notes  I  find  an 
adlion  in  the  name  of  A.  and  j.  Hamilton  again'"  'Jickenlbn  and  M'lver,  which 
is  ftated  in  my  former  letter.  Perhaps  the  iwocaufes  were  argued  togcx^rc,  h\it 
jf  they  were  not,  and  an  argument  on  one  of  them  only  was  had,  it  muft  have 
proceejed  on  the  demurrer  to  the  plea  in  the  aftioa  of  Moore.  You  will  be 
pleafed  therefore  to  confider  my  former  letter  as  applicable  to  this  cafe. 

The  diftinftior  between  a  Britifti  fubjeft  refiding  in  England,  and  an  Ame- 
rican Britifb.  fobjed;,  never  entered  my  head.  The  only  enquiry  was,  wh-jther 
it  fufficiently  appeared  on  the  pleadings  vhat  the  plaintiffs  were  Britifh  fubjefts 
and  could  avail  themfelves  of  the  Treaty . 

/  am,  Sir, 

Tour  obedient  humble  fervant , 

William  PATTERiON. 

Thefa. 


Mk.  Read.. 


1    !i 


"'c:j^3K?t'*: 


ff 


mi^-^   ^t'.iMJid-4^-^Z^Mi4J!i 


¥ 


i 


s^f 


r  4=  I 

Tliefe  will  fatisfy  the  Board  of  the  erroneous  ftatcment  made  by  the  Agen: 
for  Claimants  of  the  learned  Judges  opinion.  From  what  fource  he  drew  his  in- 
foni  ation  the  Agent  for  the  United  States  is  at  a  lofs  to  know,  as  he  has  never 
fccn  nor  heard  ot  any  authentic  reportof  this  cafe,  other  than  what  is  contained 
in  the  foregoing  letters.  By  thefc  the  plaintift's  appear  to  have  been  confidered 
from  the  pleadings  as  fubjcdh  of  Nor'h  Carolina,  who  as  fubjefts  had  been  pu- 
niftipd  by  a  forfeiture  of  the  ,  debts,  and  not  as  alien  enemies,  whofe  debts  had 
been  confifcated  by  the  right  of  war.  Of  courfc,  there  is  no  inconfiftency  be- 
tween the  opinions  given  by  the  fame  Judge,  in  this  cafe,  and  the  cafe  of  J^oties 
againft  Hyltnn,  as  the  Agent  for  Claimants  has  fuppofed,  nor  did  the  Judge 
take  a  diftinftion  between  a  Britlfh  fubjcft  refident  in  Great  Britain,  and  a  Bri- 
tiiTi  fubjeft  refident  iu  Amirica.  According  to  the  pleadings,  the  plaintifFs  ap- 
peared to  be  not  fubjriis  of  Great  Britain,  but  fubjedts  of  North  Carolina  ;  and 
being  fo,  the  jbrfeiture  by  legiflativc  aft  of  the  State  was  deemed  in  full  force  a- 
gainll  them.  Thus  the  opinion  of  Judge  Patter/on  correfponds  with  every  thing 
advanced  by  the  Agent  for  the  United  States  relative  to  Andrnjo  Alien.  Firfi, 
that  he  (hould  be  confidered  as  a  fubjefl  of  Pennfylvania.  Secondly,  if  he  was 
to  be  confidered  as  a  Britiih  fubjeft,  that  he  would  be  con.petent  to  recover  in 
the  American  Courts  of  JuHice  his  confifcated  debts. 

Doiiglajs  vj  Stirk,  in  Georgia. 

The  opinion  of  Judge  Iredell  in  this  cafe  is  fet  forth  in  the  propofed  refoluti- 
ons  in  Ingiis's  cafe  (printed  copy,  page  ^i.)  The  plaintifFis  explicitly  ftated  to 
be  "  a  citizen  of  the  State,  baniflied  from  it,  and  his  eftates  and  debts  confif- 
"  cated,"  as  a  punifhment  by  a  State  of  one  of  its  citizens,  and  judgment  is 
given  againft  his  right  to  maintain  his  a£lion. 

The  Board  may  thus  from  a  reviev/  of  thefe  cafes  be  fatisfied,  that  the  Agent 
for  Claimants  has  miftaken  the  purport  of  thefe  d^cifions  and  opinions,  when 
he  fays  that  they  prove  the  affertion,  "  that  in  the  ordinary  courfe  of  judici- 
'•  al  proceedings,  Britijh  fubjeSls  who  vierc  attainted  by  American  Legiflatures, 
"  cannot  recover  their  jull  debts,  and  that  diftinftions  in  the  American  Courts 
"  are  made  between  American  Britifti  fubjefts  and  real  Britifli  fabjefts,"  they 
certainly  prove  that  in  the  ordinary  courfe  of  judicial  proceedings,  American 
fubjefts,  who  were  attainted  by  American  Legiflatures,  cannot  recover  debts 
that  had  been  foifeited  for  crimes. 

Deeming  it  fuperfluous,  the  Agent  for  the  United  Siutes  will  not  trouble  the 
Board  with  any  remarks  upon  the  variou'^  other  matters  contained  in  the  reply. 


June  25//',   1799. 


JOHN  READ,  junior. 

General  Agent  for  the  United  Str.tes, 


i    I 


Commissioners* 


I.    41    3 


Commissioners*  Office, 
Philadelphia^  June  26,  1799. 


'•.   -A 


Present. 

Mr.  MACDONALD. 
Mr.  RICH. 
Mr.  FITZSIMONS, 
Mr.  SITGREAVES, 
Mr.  CI7IL    'MARD. 


hz  the  Cafe  of  Andrew  Allen. 


THE  BOARD  taking  into  their  confidcration  the  following  paflage  in  the 
obfervations  on  the  reply,  viz. 

"  In  the  cafe  of  Doftor  Inglis,  the  Board  on  the  2ift  May  1798,  refolved,  *'  that 
•'  "  the  Claimant's  charafler  of  Britifli  fubjeft  was  not  afFefted  or  impaired  by  the 
"  "  aft  of  attainder  and  confilcation  pafFed  by  the  State  of  New  York  on  the  2 1  ft 
"  *'  of  Oftober  1779,  attainting  him,  the  E^rl  of  Dunmore,  Governor  Tryon,  Sir 
"  "  Hemy  Clinton,  and  many  other  Britifli  fubjefts,  who  are  therein  defcribed,  not 
"  "  at  fubjeSis  of  the  State,  but  as  per/ons  holding  or  claiming  property  'within  the 
"  "  State,  and  forfeiting  and  confifcating  their  whole  eftptes  real  a'id  perfonal,  for 
"  "  their  adherence  to  His  Britannic  MajeAy;  but  that  on  the  ontrary,  the  faid 
"  "  adl  of  attainder,  and  the  defcription  of  loyalift  Oi-  '■efi:gee,  applied  to  the 


<'nce  of  his  faid  adhe- 
w  his  original  allegi- 
T]  <ard  under  the  fourth 
i".  ;icle  of  the  Treaty 
a  js.  ■    «'  This  refolu- 


"  Claimant  on  the  part  of  the  United  States,  in  c< 
"  rence,  are  conclufive  evidence  that  he  ftill  r      ,;; 
"  ance:  that  therefore  he  is  entitled  to  claim  befor 
"  article  of  the  Definitive  Treaty  of  Peace,  an    ■:  > 
"  of  Amity,  between  his  faid  Majefty  and  the  United 

tion  has  been  exadlly  recited,  becaufe  it  may  be  undeifto.:)d  i  have  omitted  the 
cafe  of  the  Claimant,  who  in  the  aft  of  attainder  and  forfeiture  is  exprefsly  de- 
fcribed as  a  fubjedl  of  the  State  of  Pennfylvania,  and  puniftied  as  fuch  by  a  for- 
feiture of  his  eftates  and  debts.  Indeed  the  ex^ireffions  in  this  refolution  feem  to 
imply,  that  ifJioiXor  Inglis  had  been  attainted  as  afubjea  of  Neiu  York,  and 
his  debts  cotif/cated  for  a  crime  committed  by  him  as  afubjecl,  the  Board  would 

F  "  "  have 


fl 


i  ^ 


r  4^  J 

••  have  (lifinifTcd  his  c'aim.  The  dlftinftlon  fo  explicitly  taken  by  the  Board,  bc- 
"  iwccn  attainting  and  punifhing  a  man  as  z.fubje3.  and  attainting  and  punifli- 
"  ing  him  "  at  a  pcrjon  hchlitigor  claiming  properly  nvithin  the  State,"  muft  have 
"  ixcn  meant  for  Ionic  ufc.  At  all  events,  this  refolution  cannot  be  confidered  as 
'  ■  deciding  that  \.\\c  f'cuyih  article  of  the  Treaty  of  Peace  fet  afide  legiflative  afts  of 
"  attainder  and  forfeiture,  paflt;d  ag»inft  individuals  defcribed  and  holdcn  as  fub- 
' '  jccl J  of  the  State,  and  punillung  them  for  their  criminal  conduft.  There  is  cer- 
"  tainly  a  difference  between  a  confifcation  of  an  enemy's  property  by  the  right 
"  of  war,  and  a  forfeiture  of  a  fubjeft's  property  by  law  for  criminal  conduft :" 

RESOLVED,  that  in  the  abovementioncd  refolution  in  the  cafe  of  Dr.  Inglis, 
the  Board  did  not  decide  on  the  diftinftion  ftated  in  the  above  paffage  to  be 
"  between  attainting  and  punifhing  a  man  as  a  fubjeft,  and  attainting  or  pu- 
"  nifhing  him  as  a  perfon  holding  or  claiming  property  within  the  State;"  ha- 
ving only  referred  to  the  faft  for  the  purpofe  of  fliewing,  that  the  cafe  flood  ■. 
.]'.-arof  all  objed^ion  on  the  ground  of  that  alledged  diftinftion. 

Epctraiitd  from  the  ProceecHngs  of  the  Board, 

G.  EVANS,  Secretary. 


Commissioners'  Office, 
Philadelphia,  ^th  July,  1799, 


Present. 

Mr.  macdonald;, 

Mr.  RICH, 
Mr.  FITZSIMONS, 
Mr.  SITGREAVES, 
Mr.  GUILLEMARD. 


In  the  Cafe  of  Andrew  Allen. 


THE  following  Refolution  having  been  the  fubjeft  of  full  difcuflion  in  the 
Bo:ud  during  feveral  fittings, — Mr.  Maalonald  with  the  concurrence  of  Mr.  Rich 
«n(i  Mr.  GuilUnnv^,   moved  that  the  fnme  (hould  be  pafTed, 

The 


[     43     J 


The  BoarJ 


having 


cotifidered  the  ^'  fir  ft  groioiJ  of  u, fence*  lakcn  Ly  tuc 
United  States  in  this  cafe,  aj  founded  on  the  aifl  of  attainder  and  contilcation, 
pafled  by  the  State  of  Pennfylvania  againil  the  Claimant  on  the  6th  day  ot 
March  1778,  in  the  following  terms,  "  Whereas  'Jt'fph  Gallotvay,  Andrevj 
"  Allen,  &CC,  SiC,  "  being  allfuhjecls  and  inhabitants  of  the  Stat;  ef  Pennfyhania, 
"  have  moll  traiteroufly,  and  wickedly,  and  contrary  to  the  allegiance  they 
^'  owe  to  the  faid  State,  joinec.  and  adhered  to,  and  ftill  do  adhere  to,  and 
"  knowingly  and  willingly  aid  and  affift  the  army  of  the  King  of  Great 
"  Britain,  now  enemies  at  open  war  againft  this  State  and  the  United  States 
•'  of  America,  and  yet  remain  with  the  faid  enemies  : — Re  it  therefore  cn- 
"  afted,  and  it  is  hereby  enafted  bj  the  reprefentati'ves  nf  the  freemen  of  the 
"  Cimmon'vuealtb  of  Pennfylvania  in  General  Afiembly  met,  and  by  the  autho- 
•*  rity  of  the  fame,  that  if  the  {z\<XJofefhGallc'way,  Andrew  Allen,  &c.  fhal! 
"  not  render  themfelves  refpeftively,  tofomeone  or  other  of  the  Juftice#-of  the 
"  Supreme  Court,  &c.  on  or  before  the  20th  day  of  April  next,  and  alfc  abide 
"  their  legal  trial  for  fuch  their  treafons,  then  every  one  of  them  (hall  Aand 
"  and  be  adjudged,  and  by  the  authority  of  the  prefent  aft  be  convifled  and 
*'  attainted  oi high  treafon,  to  all  intents  and  purpofes  whatfoever  and  fliall  fuffer 
"  and  forfeit  as  a  perfon  attainted  of  high  treafon  bylaw  ought  to  fuffer  and 
*'  forfeit ;"— and  which  '*  firfi  ground  of  defence, ^^  taken  by  the  United  States 
on  the  above  ad  of  attainder  and  confifcation,  is  fet  forth  in  the  obfervations  on 
the  Reply  as  follows,  viz.  "  The  Claimant  has  ftated  in  his  R.eply,  that  it  is 
"  not  to  be  difputed  or  denied  in  this  cafe,  that  the  Legiflature  of  Pennfylvania 
"  proceeded  againft  the  Claimant  as  an  inhabitant  or  fubjeii  of  Pennjyl'vania, 
"  and  confifcated  his  whole  edate,  real  and  perfonal,  debts  included  ;  and  the 
*'  legiflative  aft  exprefles,  that  the  attainder  and  forfeiture  was  inili£led  for  the 
"  crime  of  high  treafon."  "  That  the  State  of  Pennfylvania  in  pafllng  the  aft 
"  of  attainder  and  forfeiture  againft  Andre^M  Allen  the  Claimant,  defcribed 
"  and  confidered  him  as  a  fuhjiQ,  is  apparent  from  the  words  of  the  aft.  If 
"  he  had  not  been  a  fubjcft  of  Pennfylvania,  he  could  not  have  committed 
"  the  crime  of  treafon,  of  which  he  was  by  legiflative  aft  attainted.  That 
"  legiflative  aft  is  itfelf  evidence,  the  bed  and  higheft  evidence  of  his  being  a 
"  fubjeft  of  the  State.  Such  faith  is  due  to  the  aft  of  a  Legiflature  of  an 
"  independent  State,  that  other  teftimony  of  the  fafts  contained  in  it,  is  not 
"  to  be  required.  On  the  aft  of  attainder  and  forfeiture  therefore,  the  Agent 
"  for  the  United  States  might  reft  as  fufScient  proof,  that  the  Claimant  was  a 
*'  fubjeft  of  Pennfylvania.  Aware  of  this,  the  General  Agent  for  Claimants 
**  has  advanced  the  extraordinary  pofition, — that  the  Treaty  of  Peace  is  the 
*'  only  point  of  time  from  which  agreeably  to  the  Britifli  conftitution  and  laws, 
"  the  United  States  ceafed  to  be  apart  of  the  Britiih  empire. — According  to 
"  this  doftrine,  Pennfylvania  was  not  an  independent  State  until  the  peace, 
"  for  flie  could  not  be  an  independent  State  while  flie  remained  a  part  of  the 
*<  Britifli  empire.  According  to  this  doftrine  her  legiflative  afts  prior  to  the 
"  Peace,  are  not  to  be  regarded  as  the  afts  of  an  independent  State. — This 
"  pofition  being  important  to  the  juft  decifion  of  this  claim  fliall  be  ex- 
"  amined.  When  the  United  States  became  independent  and  took  their  phice 
"  among  the  nations  of  the  earth,  is  a  matter  not  to  be  determined  agtecably 
"  to  the  Britifli  conftitution  and  laws,  Ait  agreeably  to  the  laws  of  nature  and 
"  of  nations.     In  fall  they  ivcre  independent  fo  early  a;  1775,  ^nd  en  the  ever 

ghriot.s 


[     44     T 


'  glu-ir.ns  and  memnrahk  Jlurth  cf  July  1 776,  they  folemnly  and  formally  de- 
'  claicd  to  the  world  they  were  independent,  and  from  that  period  have^ 
'  muintaiiied  their  independence  with  honour  and  profperity. — Prior  to  the 
'  Treaty  of  Peace  they  made  Treaties  of  Alliance,  Commerce,  and  Naviga- 
tion, aid  were  thus  publicly  recognized  by  Foreign  Powers  as  an  independ- 
'  eiu  nation.  They  can-ied  on  ivnr,  they  made  laws  for  their. own  government, 
and  did  every  oihcr  ad  of  a  fovereign   power,     '■rhe  formal  acknoiuUdgmnt 

■  by  His  Britnunic  MajrJIy  added  nothing  to  their    real  independence,  and  it   the 
'I'reaty  of  Peace  had"  never  been  made,  the  United  States  would  have  aftually 

'  continued  an  independent  nation,  though  at  ivar  ivith  Great  Britain  to  this 
'  moment.  What  is  it  the  United  States  were  incompetent  to  do  as  a  fove- 
•  reign  power,    between  the  4th  July  1776,  and  tne  3d  September   1783, 

■  which  tiiey  can  now  do  ?  "  Every  nation  that  governs  itfelf  under  what 
'  "  form  focver  without  any  dependence  on   a  foreign  power  is   a  fovereign 

'■  "  State,    its  rights  are  naturally  the  fame  as  thofe  of  any  other  State.     Such 

"  are  moral  perfons  who  live  together  in  a  natural  fociety,  under  the  law  of 

"  nations.     To  give  a  nation  a  right  to  make  an  immediate  rigure  in  this 

"  grand  fociety,  it  is  fufficient   if  it  be  re.illy  fovereign  and  independent, 

"  that  is,  it  muft  govern  itfelf  by  its  own  authority."     Vattel  B^  i.  S.  4. 

"  When  a  nation  becomes  divided  into  two  parties  abfolutely  independent, 

"  and  no  longer  acknowledging  a  common  fupcrior,  the  State  is  diflblved, 

'  "  and  the  war  L'itwixt  the  two  parties  in  every  rei'ped  is  the  fame  with  that 

'  '■  of  a  public  war  between  two  different   nations."     Ih,  B.  3.  S.  295. — 

'  Applying  thcfe  paflagea  to  the  fituation  of  the  Britifh  empire  when  the  Ame- 

'  rican  colonies  feparated  from  Great  Britain,  declaring  their  independence  and 

'  maintaining  it  by  the  h.'crd,  they  prove  the  feveral  United  State^i  to  have  been 

independent  as  early  as  the /iw/A  of  July  1776  ;  that  day  is  the  anniverfary  of 

their  fovereignty,  and  as  fuch  celebrated  in  every  part  of  the  country.     In 

the  year  1776,  the  States  generally  formed  their  conftitutions  of  government, 

fome  of  which  remain  to  this  moment  unaltered  ;  and  are  confidered  as  the 

palladium  of  their  rights,  the  fource  of  all  lawful  authority.     Even  in  Weft- 

minfter  Hall  the  Judges  have  frequently  declared,  that  the  afts  of  the  Legif- 

latures  of  the  feveral  States,  which  were  pafled  during  the  late  war,  could 

be  regarded   by  them  in  no  other  light  than  afts  of  independent  States. 

■  Though  Andrev!  Allen  after  being  a  fubjeft  to  Pennfylvania  joined  the  Britijh 
forces  in  Deceit ber  1776,  and  returned  to  Ir;  natural  allegiance,  this  did  not 

diflblve  the  ri  jht  of  Pennfylvania  to  hold  L;-  as  its  fubjeft,  and  as  its  fubjeft 
to  punilh  him  :  having  done  this  by  a  legifiative  aft,  it  only  remains  to  be 
confidered,  wiether  that  aft  was  repealed  as  to  debts,  hy  iht  fourth  article 
of  the  Treaty  of  Peace.  The  Agent  for  the  United  States  contends  that  it 
was  not,  and  thr:  the  debts  forfeited  for  treafon  during  the  war,  were  not 
embraced  by  iliat  article,  becaufe  Andrexv  Allen,  and  all  others  in  the  like 
predicament,  were  civilly  dead  as  to  the  United  States,  and  were  not  creditors 
when  the  Treaty  of  Peace  was  concluded,  of  the  debts  that  had  been  forfeited; 
The  ftipulation  tliat  creditors  on  either  fide  fliall  meet  with  no  lawful  impedi- 
ment to  the  recovery  of  the  full  value  in  flerling  money  of  all  bona  fde 
debts  hcrctofoie  lontrafted,  does  not  include  perfons,  who  as  fubjeQs  had 
become  deprived  of  their  eftates  and  debts  for  their  criminal  condufi  ;  Andrew 


Alio:  having  joined  tl; 


American  fide,  as  is  proved  hy  the  highed  evidence, 

tlic 


■nm 


wmMsstfn^ 


[     45      1 

"  the  legiflativc  aft  of  Pennfylvania,  and  having  dekrteU  it  and  thereby  incur- 

"  red  a  forfeiture  of  all  his  rights,  is  in  no  point  of  view  to  be  confidered  as  a 

"  creditor   on  the  Britifh  fide.     To  conclude,  the  fiill  ground  of  defence,  if 

••  the  legiflative  aft  of  attainder  and  forfeiture  paflVd  by  Pennfylvania  on  the 

"  6th  of  March  1778,  is  to  be  confiJered  as  an  aft  of  a  fovereign  independent 

"  State,  it  is  conclufive  proof  that  j^ndrcw  Allen  was  once  a  fubjeft  of  Penn- 

"  fylvania,  and  had  forfeited  his  eftate  including  his  debts  prior  to  the  Treaty 

"  of  Peace,  for  his  criminal  conduft  as  a  fubjeft.     If  as  a  fubjeft  he  was  at- 

"  tainted,  and  punifhed  by  a  lofs  of  his  debts,  the  Treaty  of  Peace  did  not 

"  annul  the  legiflative  aft  of  forfeiture,    and  reftore  to  him  a  light  to  recover 

•'  his  forfeited  debts.     If  the  Treaty  of  Peace  did  not  reftore  to  him  a  right  to 

"  recover  fuch  forfeited  debts,  there  has  been  no  lofs  proceeding  from  a  violation 

•'  of  it,  for  which  he  is  entitled  to  claim   icfore  the  Hoard  under  the  Treaty  of 

"  Amity."     And  in  the  following  paffag    in  a  fubfequen'  part  of  the  paper,— 

"  The  plaintiffs  in  this  cafe  {Jiamiltom  -vi.  Eaton)  were  allowed  by  a  law  of 

"  North  Carolina,  together  with  others  fimilarly  circumftanced,  the  option  of 

"  taking  an  oath  of  allegiance  to  the  State  or  of  departing  it.     They  chofe  the 

"  latter  and  were  never  regarded  as  fubjcfts  of  the  State.     Their  confifcaied 

"  debts  they  have  been  adjudged  to  be  capable  of  recovering  of  their  debtors. 

"  It  is  not  to  be  denied,  that  the  Chief  yuj} ice  f^wr//;  in  delivering  his  fen- 

"  timents  on  this  cafe  does  ftrongly  imply,  if  the  plaintifFs  had  been  claimed 

"  and  holden  as  citizens,  and  for  their  crime  had  been  deprived  of  their  debts, 

•*  that  they  could  not  have  recovered  them  under  the  Treaty  of  Peace.     This 

"  opinion  the  Agent  for  the  United  States  confiders  as  a  very  refpeftable  fup- 

••  port  of  the  firft  ground  of  defence  taken  in  this  claim  ; — upon  all  occafions  the 

♦'  Chief  Jufticc-  has  been  ready  to  allow  the  fulleft  force  of  the  Treaty  of  Peace 

"  upon  cafes  within  it,  and  if  debts  forfeited  for  treafon  are  not  in  his  opinion 

'  recoverable  in  the  Federal  Court,  it  can  only  be  becaufe  he  thinks  they  are 

"  not  within  the  operation  of  the  Treaty,  for  if  they  were,  it  is  difficult  to 

"  afiign  a  reafon  why  they  (hould  not  be  recoverable  at  law,  as  well  as  debts 

"  confifcated  by  right  of  war  :" — In  aid  of  which  argument  two  letters  have 
been  produced  from  a  learned  Judge  of  the  United  States  (Paterftn)  to  the 
Agent  for  the  United  States,  in  anfwer  to  his  enquiries  refpefting  the  nature 
and  import  of  certain  decifions  therein  mentioned,  one  of  which  letters,  re- 
cited in  the  ohfervations  ii^Xtii  the  27th  day  of  May  laft,  gives  an  account  of  the 
cafe  ofMufter  and  Hamiltons  againft  Mecr?  therein  mentioned,  as  follows,  "  The 

««  declaration  Hates  that  A.  and  J.  Hamilton  are  fubjeils  of  the  King  of  Great 

«'  Britain.     The  defendant  pleaded  that  the  plaintiffs  are  on   the  confifcation 

"  aft  of  North  Carolina,  and  payment  to  the  Commillioners.     The  plea  ftates 

"  that  the  faid  A.  and  J.  Hamilton  were  inhabitants  of  North  Carolina,  and 

"  continued  to  be  fo  until  September  1777.     To  this  plea  the  plaintifFs  demurr- 

"  cd.     I  well  remember  that  it  was  urged  by  Mr.  Noel,  one  of  the  counfel  on 

•'  the  part  of  the  defendant,  that  all  inhabitatits  became  citizens  by  the  declara- 

"  tier,  of  independence.     On   this  point   the  Court  gave  no  opinion,  it  was  not 

"  necelTary  ;  the  cafe  did  not  require  it.     As  it  was  admitted  by  the  pleadings 

«'  that  A.  and  J.  Hamilton  were  inhabitants  of  North  Carolina  on  the  4th  day 

"  of  July,  1776,  and  continued  to  be  fo  till  September,  1777,  a  period  more 

"  than  fufHcient  for  them  to  make  their  f/^J/c«  agreeably  to  the  law  of  nations, 
''  /  conJidtn4  them  as  citizens  of  North  Carolina,  and  not  as  fubjeils  if  the  King 


1 


t  i 


40 


1 


of  Gieat  Driii.in 
ia   tlx."  pleading 


So  tiic  !  iw  appeared  to  mc  33  arifuig  on  u     fafls  det*;.i"a 

_  J. ^       In  «ii)  jiiditial  capacity  I  was  obliged     0  take  »h       afc 

"  tiom  tlio  declaration,  plea,  and  demurrer;  but  1  inl'-na.-i'  ..lorc  th,.i.  .ict 
"  the  propriety  of  moving  to  amend  the  proceedings.  It  w.j  not  done.  The 
"'  deciiiou  palTed  again  11  the  plaiiui.''i.  I  cannot  undertake  to  fay  of  what 
"  opinion  the  Court  would  have  bi  n,  if  the  plaihtiff)  bad  replied  that  tkey 
"  rci-ir  ftihjccls  cf  U',;  Britannic  Mnjfjly,  and  alfo,  the  'Treaty  of  Peace. "— 
"  The  dilHnftion  between  a  Britifh  lubjtcl  reficiiiig  in  England,  and  an  Amc- 
"  rican  Hritiih  fubjed,  never  entered  my  head.  The  only  enquiry  was,  whc- 
"  thcr  it  Uifficient'.y  appeared  on  the  pleadings  that  the  plaintifts  were  Britifli 
•'  lubjedts  and  could  avail  thcmfelves  of  the  'I'reaty." 

RESOI.VRD  on  the  faid  "  f>y?  ground  of  dift/ni,"  and  referving  the 
other  points  in  the  cafe,  that  it  bccomrs  the  Board  to  refrain  from  all 
obfcrvation  on  the  gcmral  queftionji  fuggellcd  in  the  above  argument ;  name- 
ly, uliether  a  part  of  a  nation  becomes  independent  of  the  government 
which  had  been  eftablifhed  over  the  whole  merely  by  declaiing  itfelf  to 
be  fo,  and  fupporting  fuch  declaration  "  by  the  fword?" — whether  a  part 
of  a  nation  by  thus  "  carrying  on  war"  againll  that  which  had  till  then  been 
maintal.ied  as  the  government  of  the  whole  ;  "  making  laws  for  their  own  go- 
"  vernmcnt ;  and  doing  every  aft  of  a  fovereign  power,"  does  truly  become  a 
fovcreign  pmvcr  r — whether  the  aflertion  be  well  founded,  that  "  the  formal 
"  acknowledgment  by  His  Britannic  Majefty  added  nothing  to  the  real  inde- 
"  pcndeiice  of  the  United  States  :" — wliat  would  have  been  the  cafe  "  if  the 
"  Treaty  of  Peace  had  never  been  made  .'" — whether  "  the  United  States 
"  would"  have  aiaually  continued  an  "  independent  nation  though  at  war  with 
"  Great  Britain  ac  this  moment?" — and  how  far  '•  the  celebration  in  every 
"  part  of  the  country  of  the  ever  glorious  and  memorable  4th  day  of  July, 
"  1776,"  (according  to  the  language  made  ufe  of  before  the  Board)  "  as  the 
"  anniverfary  of  their  fovereignty"  can  affeft  the  prefent  cafe? — that  the 
Board  think  it  fit  alio  to  refrain  from  all  obfervatlon  on  the  cafe  which  is  in  fub- 
flance  put,  of  an  unconditional  fubmijjion  on  the  part  of  Great  Britain  to  the  in- 
dependence of  the  United  States,  and  to  all  that  bad  been  done  under  the  autho- 
rity they  exercif'd ;  becanfe  the  cafe  fo  put,  is  not  the  cafe  which  aftualiy 
exifh  ;  there  having  been  no  fuch  :(«««<//7/'o«a/fubmiinon,  or  acknowledgment 
of  the  independence  of  the  United  States  on  the  part  of  Great  Britain,  but  a 
recognition  by  folcmn  Treaty,  containing  reciprocal  Jiipulaiions,  as  the  price 
of  peace,  and  for  the  mutual  benefit  of  both  countries : — that  as  it  has  however 
been  maintained  in  the  Board,  that  the  independence  of  the  United  States  was 
complete  even  as  againft  Great  Britain  before  the  Treaty  of  Peace,  it  cannot  be 
improper  to  ftatc,  the  impreflions  entertained  on  that  important  fubjedl  by 
Judges  of  great  name  and  authority  in  the  United  States,  from  their  opinion:, 
judicially  delivered,  and  as  the  fame  are  recited  and  referred  to  in  the  paper 
read  by  Mr.  Siigreanjes,  and  put  on  the  minutes  of  the  Board  on  the  19th  da\ 
of  February  lall,  in  the  cafe  of  the  Right  Reverend  Charles  Inglis : — that  in  the 
cafe  of  Ifuyy,-  adminiftrator  of  y^/ies  againft //)//o«,  decided  in  the  Supreme 
Court  of  the  United  States  in  February  1796,  Judge  Chafe,  in  dating  the  out- 
line of  rcciprociii  ftipidation  contained  in  the  Treaty  of  Peace,  expreffes  himfelf 
s"-  fbl!ow5,  "  I  ;v ill  now  proceed  to  the  ccnfuleration  of  tha Treaty  of  178^.' 

it- 


(  i 


^^ 


t     47     3 

"  It  is  evident  on  a  perural  of  it  what  were  the  great  and  principal  objefts  ii: 
"  view  by  both  parties.  There  were  four  on  the  par:  of  the  United  States, 
*'  to  wit,  Firjl,  An  acktiowlcifgcmciit  rf  their  indcpcndttice  hy  the  Crci\:u  of  Great 
*'  Britain.  Second,  A  fettlement  of  their  weftern  bounds  Third,  The  right 
"  of  filhery,  and  Fourth,  The  free  navigation  of  the  Mifliflippi.  'I'here  were 
"  thret  on  the  part  of  Great  Britain,"  &c.  the  recovery  of  debts  provided 
for  by  v\\t  fourth  article  being  referred  to  as  the  firftof  thefe  three  objeih — and 
another  learned  Judge  of  the  United  States  (Pater/on)  whofe  opinion  in  the 
faid  cafe  is  alfo  recited  in  the  fame  paper,  obfcrves  as  follows. — "  The  traders  and 
"  others  of  this  country  were  largely  indebted  to  the  merchants  of  Great  Britain. 
•'  To  provide  for  payment  of  thele  debts,  and  give  fatisfaftion  to  this  clafs  of 
•*  fubjefts,  muft  have  been  a  matter  of  primary  importance  to  the  Britiih  Mi- 
"  nift'ry.  This  doubtlefs  is  at  all  times,  and  in  all  fituations,  an  objefl  of  moment 
'•  to  a  commercial  country.  The  opulence,  refources  and  power  of  theBritifh 
"  nation,  may  in  no  fmall  degree  be  afcribed  to  its  commerce  :  it  is  a  nation  of 
"  manufafturers  and  merchants.  To  proteft  their  intcrefts  and  provide  for  the 
"  payment  of  debts  due  to  them,  cfpeciatly  when  thofe  debts  amounted  to  an 
*'  immcnfe  fum,  could  not  fail  of  arreting  the  attention,  and  calling  forth  the 
"  utmoft  exertions  of  the  Britifh  cabinet.  A  meafure  of  this  kind  it  is  eafy  to 
"  perceive  would  be  purfued  with  unremitting  diligence  and  ardor. — Sacrifices 
*'  would  be  made  to  enfure  its  fuccefs,  and  perhaps  nothing  fhort  of  extreme 
"  neceffity  would  induce  them  to  give  it  up." — Condufions  which  are  not 
weakened  by  the  confideration,  that  although  it  is  true  the  greater  part  of  the 
«'  immen/e'*  debt  thus  provided  for,  was  due  to  Britilh  merchants,  part  of  it 
was  alfo  due  (in  the  language  of  the  Treaty  of  Amity)  "  to  others  his  Majefly's 
fubjefts."— That  another  learned  Judge,  whofe  opinion  in  the  cafe  ofM'Call 
againft  Turner,  was  publifhed  at  full  length,  and  fpeoially  referred  to  on  the 
part  of  the  United  States  in  their  printed  anfwer  to  the  claim  Kii  William  Cun- 
ningham and  Co.  namely  Judge  Pendleton,  exprefTedhimfelf  in  the  Virginia  Con- 
vention (of  which  he  was  Prefldent)  when  debating  on  the  adoption  of  the  Federal 
conftitution,  as  follows,  "  Congrefs  were  empowered  to  make  war  and  peace. 
•'  A  peace  they  made,  giving  us  the  great  objeH,  independence,  and  yielding  us  a 
"  territory  that  exceeded  my  moft  fanguine  expeflations.  Unfortunately  a  (ingle 
*'  difagreeabh  claufe,  not  the  objeft  of  the  war,  has  retarded  the  performance  of 
"  the  Tteaty  on  our  part.— Congrefs  could  only  recommend  its  performance,  not 
"  enforce  it." — That  in  order  to  determine  the  prefent  queftion,  the  Board 
have  only  to  apply  the  plain  and  unambiguous  terms  of  the  faid  fourth  article, 
for  which  '*  facrifices"  were  thus  held  to  have  been,  and  certainly  were 
made  on  the  part  of  Great  Britain  ;— and  that  the  terms  thereof  «>-;  plain  and 
unambiguous  (lands  confirmed  by  the  refpeftatle  authority  already  referred  to. 
*♦  On  the  bed  inveftigation  (fays  Judge  Chafe)  which  I  have  been  able  to  give 
**  the  yotfr/A"  article  of  the  Treaty,  I  cannot  conceive  that  the  wifdom  of  man 
««  could  exprefs  their  meaning  in  more  accurate  or  intelligible  words,  or  in 
•*  words  more  proper  and  elFeftual  to  carry  their  intention  into  execution"— and 
Judge  Paterfon  expreffes  himfelf  thus— "  The  phrafeology  made  ufe  of  leaves  in 
"  my  mind  no  room  to  hefitate  as  to  the  intention  of  the  parties.  The  terms 
«*  are  unequivocal  and  univerfal  in  their  fignification,  and  obvioufly  point  to, 
"  and  comprehend  all  creditors,  and  all  debtors  previoufly  to  the  3d  September 
"  1783.     In  this  article  there  appears  to  hs  a  felei,^ien  of  expreffton,  plain  and 

cxtenfKe 


i-- 


i^ 


m 


: _«!^ 


I. : 


I     (8     ) 

"  exKrnrii'c  in  their  import,  r.nd  admirably  cahulatcdto  obviate  doubts,  to  remove 
"  difficulties,  to  difignate  the  objefts,  and  afcertain  the  intention  of  the  con- 
"  tending  powers," — "  Tlie  words  creditors  on  either  Jide  embrace  every  de/crip- 
"  tion  of  creditors.'^ — Ail  credito  rs  on  either  Menvithout  dijlinilion  muft  have 
"  been  contemplated  by  the  parties  in  the  fourth  article  :  Almoft  every  word 
"  fcparately  taken  is  cxprefllve  of  this  idea,  and  when  all  the  words  are  com - 
■'  bined  and  taken  together,  they  remove  every  particle  of  doubt." — That  the 
fame  imprcllion  of  the  ample,  comprehenfive  and  unreftrained  force  of  the  faid 
f'omth  article,  is  further  confirmed  by  another  learned  Judge  (SitgreavesJ  in  the 
opinion  delivered  by  him  in  the  cafe  ol  Hamiltons  againji  Eaton,  in  June  1796, 
alio  referred  to  and  recited  in  the  abovementioned  paper,  entered  on  the  minutes 
of  the  Hoard  in  the  cafe  of  Inglis ;  the  faid  learned  judge,  in  (latine  the  general 
and  unlimited  import  of  the  expreflion  "  nil  creditors  on  either  fide  '  in  the  faitj 
fairth  article,  where  no  other  diftimf^ion  of  perfon  or  chara(fler  was  intended 
ihan  that  of  being  on  the  one  ilde  or  the  other  at  the  peace,  having  therein  re- 
ferred to  the  feveral  dillinflions  of  charader  anxioufly  marked  out  in  the  very  next 
jirticic,  viz.  the  fifth,  where  fuch  diflindlions  were  intended,  (but  which  fifth 
jirticle  has  no  relation  to  the  recovery  of  the  debts  fecured  by  the  fourth  article) 
.ii  follows :—"  The /o»r//.»  article  contains  the  only  ftipulation  with  refpe£t  to 
"  debts  in  the  whole  inftrument.  It  is  mutual  and  general  in  its  expreffion,  not 
"  limited  or  rcftrained  by  any  particular  words  to  any  defcription  of  perfon s,  as 
"  is  evident  in  they5/>A  article.  If  that  had  been  in  the  contemplation  of  the 
«'  parties,  they  could  not  have  overlooked  the  neceflity  for  thefe  diftinftions,  nor 
<'  are  we  at  liberty  to  prclume  it.  In  the  next  article,  the  diftinftion  is  made 
"  with  great  accuracy  with  regard  to  thofe  who  endeavour  to  procure  a  reftituti- 
"  on  of  their  lands  and  other  property:" — that  the  extent  cqurlly  unlimited 
of  the  cxprcflion  "laxvful  impediments"  is  likewife  referred  to  and  explained 
by  the  fame,  and  other  learned  Judges  of  the  United  States,  whofe  opinions 
urc  quoted  in  the  abovementioned  paper,  in  the  cafe  of  Inglis,  Judge  Chafe 
liavinjT  cxprcffed  himfclf  on  that  fubjeft  as  follows, — "  Shall  meet  with  no 
"  lav. fil  impediment ;"  th.it  is,  with  no  o'oftacle  (or  bar)  arifing  from  the  com- 
"  mou  laiv,  or  ads  of  Parliament,  or  aBs  of  Congref,  or  afts  of  any  of  the 
"  States,  then  ill  exijlcnc!",  or  thereafter  to  be  made,  that  would  i»  any  manner 
"  operate  to  prevent  the  recovery  of  fuch  debts  as  the  Treaty  contemplated."— 
"  The  prohibition  that  no  lawful  impcdimeut  Ihall  be  interpofed  is  the  fame  as 
"  that  ail  lawlul  impediments  (hall  be  JvwoTTi/.  The  meaning  cannot  be  gra- 
"  tified  by  the  removal  of  one  impediment  and  leaving  another  ;  and  a  fortiori, 
"  by  taking  away  the  lefs  and  leaving  the  greater ;  thefe  words  have  both  a 
"  rc-trofpeSfive  and  future  afpeft." — Judge  Paterfon.,  "  The  words  /hall  meet 
"  with  no  lav.ful  impediment  refer  to  legillative  afts  and  every  thing  done  under 
"  them,  .'b  hr  as  the  creditor  mzy  he  a ffi,j?cd  or  obfirui^ed  in  regard  to  his  remedy 
"  or  right.  All  lawful  impediments  of  whatever  kind  they  might  be  whether 
"  they  related  to  pcrfonal  difahililies,    or  confifcations,  &c.    are  removed.     No 


impediment,"  arc  as  Hrong  as  the  w:t  ot  man  could  devile  to  avoid  all  effcii! 
"  of  liequcftration,  confifcation,  or  any  nhfiacle  thrown  in  the  way  by  any  law 
"  particularly  pointed  againft  the  recovery  of  fuch  debts." — .And  to  fliew  that 
3  lawful  impediment  might  operate  within  the  meaning  of  the  Treaty,  though 

there 


ffp 


•  -•lar'  • -vjrrif*"^ 


TKri^^ 


r  49  ] 

there  Ihould  be  no  /«•?«/  debt  at  the  date  of  the  Treaty  of  Peace,  Judge  fFiljoH 
obferves,  that  the  fourth  article  "  is  not  confined  to  dthts  exifting  at  the  time 
"  of  making  the  Treaty,  but  is  extended  to  liebf  thereto/pre  contratltd." 

That  the  cxpofition  thus  given,  /?««  tht  Treaty  of  Amity,  viz.  in  the  year 
1796,  by  the  learned  Judges  of  the  United  States  above  named,  correfponds 
with  the  opinion  which,  on  mature  deliberation,  the  Board  have  clearly  formed 
on  this  fubjeft,  and  which  they  now  declare,  viz. 

That  the  fame  inftrument,  by  the  firft  article  whereof  His  Britannic  Majefty 
on  the  3d  day  of  September,  1783,  "  acknowledged  the  United  States"  (not 
to  have  been  from  the  4th  day  of  July,  1776,  but)  "  to  he  hee,  fovereign,  and 
"  independent  States;  that  he  treated  with  them  as  fuch,  and  relinquiihed  all 
'•  claims  to  the  government,  propriety,  and  territorial  rights  of  the  fame," 
provided  alfo  in  eflteft,  by  the  mutual  llipulation  in  favor  of  "  creditors  on  either 
"^i/?,"  contained  in  the  fourth  article  thereof,  that  no  aft  which  had  then  been, 
or  Ihould  thereafter  be  done  or  pafled,  by  or  under  the  authority  of  the  faid  Uni- 
ted States,  or  any  of  them,  whatever  might  be  its  form  or  import ;  whatever 
the  terms  therein  employed  ;  whatever  the  extent  of  power  thereby  aflumed  or 
declared  ;  whatever  the  charadVer  thereby  afcribed  to  the  individual  againil 
whom  it  was  direfted,  (hould  be  fuffered  to  oi^eratc  as  a  lawful  impediment  to 
the  recovery  of  debts  '•  theretofore  contrafted"  to  a  creditor  on  the  fide  of  His 
Britannic  Majefty  at  the  date  of  the  faid  Treaty :  Nor  can  the  objeftion  be 
fupported,  that  the  above  interpretation  would  extend  to  the  ordinary  operation 
vf  criminal  law  in  cafes  of  felony,  and  fuch  other  offences  as  did  not  arife  from 
the  part  taken  by  individuals  during  the  war  ;  for  fuch  ordinary  operation  of  cri- 
minal law  thus  fuggerted  as  the  ground  of  an  objeftion,  has  no  relation  whate- 
ver to  the  fubjedt  matter  of  the  faid  article :— That  in  the  cafe  of  the  Right  Re- 
verend Charles  Inglis,  the  Board  by  their  unanimous  icfolution  of  the  imenty -firft 
day  of  May,  1798,  determined,  that  an  aft  of  the  State  of  New-York  pafled 
durin,'»  the  war,  attainting  the  faid  Charles  Inglis  for  the  imputed  crime  of  ad' 
hering  to  His  Britannic  Majefty  was  a  lawful  impediment  within  the  meaning  of 
the  Treaties  ;  the  only  difference  between  that  cafe  and  the  prefent  confifting 
in  the  different  words  of  defcription  contained  in  the  two  feveral  afts ; — but  as 
the  aft  of  the  State  of  Pcnnfylvania  cannot  have  any  greater  effcft  or  operation 
againft  the  fourth  article  of  the  Treaty  of  Peace  than  that  of  New  York,  and 
as  the  faft  charged  to  be  a  crime,  viz.  adherence  to  the  caufe  of  His  Britannic 
Majefty  is  the  fame  in  both  cafes,  the  mere  words  of  defcription  affumed  in  the  aft 
of  Pcnnfylvania,  cannot  prove  fl^a/>//?  the  true  charafter  of  the  party  ao  a  Bri- 
tiftj  fubjeft,  or  give  efficacy  to  iticlf,  fo  as  to  take  the  cafe  out  of  the  meaning 
and  operation  of  the  faid  article  : — Nor  does  it  appear  how  the  Claimant  be- 
came lawfully  fubjefted  to  that  State  any  more  than  the  faid  Charles  Inglis  to  the 
State  of  New  York,  or  the  former  Icfs  entitled  to  the  charafter  ofBritifti  fubjedl 
than  the  latter : — That  all  general  argument  on  the  declaration  of  independence, 
and  the  effeft  of  afts  done  under  it,  whether  by  the  law  of  nations 


by 


of  the  idledged  rctrolpcft  of  the  above  recognition  by  the  Treaty  of  Peace,  ii 
therefore  precluded,  fo  far  as  regards  the  prefent  fubjeft,  ^_>'  the  plain  terms  of 
n  pnfiti-vc  compaSi  : — That  the  com  prehcn five  expreflion  "  creditors  on  either  fide, '^ 
cor.taincd  in  the  fcurth  article  of  the  faid  Treaty,  unreftiained  by  exception,  In 

(j  difirip/ror' 


H 


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ii 


[     50     ] 

dtfcripiion  ef  fftnal  chnruifir,  »ir  reftriiliiin  ef  nny  kind,  was  evidently  <f lirtt'd 
tut  the  very  purpofc  of  avoiding  all  doubts  or  difficulties,  which  might  oiherwilc 
liavf  been  raifed  upon  fuch  dillinf^ions  of  charafler,  as  (with  reference  to  a  dif- 
ferent fubjeil)  arc  anxioully  delineated  in  the  article  immediately  following  : — 
That  if  the  Claimant  could  be  faid  to  have  at  any  time  made  hit  tleclioH  in  favour 
i)f  the  United  States  under  the  declaration  of  independence,  and  fo  departed  for  a 
time  fubfequent  to  that  event  from  his  native  a'legiance,  (the  contrary  of  which 
appears  to  have  been  the  cafe)  his  return  to,  and  having  been  on  thi  fide  of  his 
faid  native  allegiance  at  the  Pctiie,  would  have  feciired  to  him  the  benefit  of  the 
faid  fourth  article  of  the  Treaty. — That  accordingly,  having  been  on  the  fide 
cf  His  Britannic  Majelly  at  the  date  of  the  Treaty  of  Peace  ;  and  being  a  na- 
tural born  fubjeit  of  his  faid  Majefty,  not  bar-ed  by  the  acceptance  of  citizen- 
ftiip,  from  the  right  of  claiming  ngainft  the  United  States,  the  Claimant  is  en- 
titled under  tlic  Treaty  of  Amity,  to  complain  to  this  Board  of  the  faiJ  adl  of 
attainder  and  confilcation  before  recited,  as  being  a  Iwn'/ul  impediment  wiihin 
liie  defcription  of  the  fourth  article  of  the  Treaty  of  Peace,  and  thefixth  article 
of  the  Treaty  of  Ami'y,  to  the  recovery  of  fuch  debts,  as  he  fliall  prove  to  the 
fatisiadion  of  the  Board,  within  the  meaning  of  the  faid  Treaties ; 

And  in  regard  to  the  ftatement  before  recited  of  the  Agent  for  the  United 
Staf",  which  lias  been  referred  to  in  the  Board  as  follows,  "  even  inWeftmin- 
*'  (*•••  Vfali  the  Judges  have  frequently  declared,  that  the  ad\s  of  the  Lcgiflatures 
'  .-,  .  i'everal  States  which  were  pafled  during  the  late  war,  could  be  regarded 
'  h\  iJ.eni  in  no  other  light  than  ads  of  independent  States ;"  That  no  cafe;  has 
■iici  occurred  in  the  Courts  of  Wellminller  Hall  where  the  above  general  propo- 
iition  W..3  fo  declared  ;  and  occafions  have  noi  frequently  occurred  for  confidcring 
that  fubjed  ;  nor  v>  it  the  prailice  of  the  Judges  to  enter  upon  the  difcufTion 
of  matter  not  ncceflary  to  the  determination  of  the  queftion  before  them  :  but 
whatever  has  bee  i  faid  by  any  cf  the  Judges  in  Weltminller  Hall  which  may  be 
held  as  applicab.e  to  the  prefent  quellion,  will  be  found  corredly  to  agree  with 
the  principles  anU  concluf;ons  now  declared  by  the  Board; — the  faid  principles 
and  conclufions  containing  nothing  inconfiftent  with  that  perfcA  refpcft  which 
is  due  tc  the  ),idependence  of  the  United  States,  as  the  fame  was  recognized 
on  the  part  of  His  Britannic  Majelly,  by  t\\c  firj)  article  of  the  Treaty  of  Peace. 

And  the  faid  refolution  having  been  read  Mr.  Fitxfimons  anil  Mr.  Sitgreaves 
jvithdrew. 

ExlraSled  from  the  Proceeding!  of  the  Board. 

G.  EVANS,  Secretary 


in  : 

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